Court File and Parties

Court File No.: 15-A10731 Date: April 26, 2016 Ontario Court of Justice

Between: Her Majesty the Queen — and — Cynthia Martin

Before: Justice Julie Bourgeois

Heard on: April 14, 2016

Reasons for Judgment released on: April 26, 2016

Counsel:

• Ms. Julie Roy, counsel for the Crown
• Mr. Joseph Addelman, for the accused, Cynthia Martin

Judgment

BOURGEOIS J.:

Charges and Background

[1] Mrs. Cynthia Martin was charged with operating a motor vehicle while her abilities to do so were impaired by alcohol contrary to section 253(1)(a) of the Criminal Code and with operating a motor vehicle while her blood alcohol concentration exceeded 80 mg contrary to section 253(1)(b) of the Criminal Code. The allegations stem from an incident occurring on May 18, 2015, in the City of Ottawa.

[2] A trial was heard before me on April 14, 2016. A number of admissions were made on her behalf and they are: the date, the identity, the jurisdiction, the driving, the voluntariness of her statements to the police, the qualifications of the qualified technician from the Ottawa Police Service and of the toxicologist from the Center of Forensic Sciences.

[3] After colliding with a parked vehicle on the side of Bromley Road, Mr. Anderson, a neighbour, came to offer his assistance. She was in the driver's seat but had to exit through the passenger's side as a result of the position of the vehicles after the collision. They contacted police after approximately fifteen minutes later. Shortly after police arrival, she admitted consuming alcohol and Cst Spence obtained a fail, at 1:05am on the approved screening device. She was placed under arrest and transported to the police station where she provided two samples of her breath into the Intoxilyzer at 2:21am and 2:44am. The results exceeded the legal limit.

Issues

[4] Two central issues are raised in this case:

i. Bolus drinking: Did Mrs. Martin consume alcohol shortly before driving, therefore affecting the identity of the results at the time of testing versus her blood alcohol concentration at the time of driving?

ii. Scientific impairment: In determining whether Mrs. Martin's ability to operate her car was impaired by her consumption of alcohol, should the court rely on the scientific opinion of impairment at 50mg percent?

Evidence

[5] I heard six witnesses in this case and I will summarize the evidence provided by each of them in the order they were presented to me by the parties.

i. Mr. Daniel James Anderson

[6] At around 12:30am, Mr. Anderson was in the living room of his home located at 1846 Bromley Road when he heard a loud crash. He exited his home and observed Mrs. Martin in the driver's seat of her vehicle. He explained that she had sideswiped the passenger's side of his neighbour's car, parked on the same side of the road as his house (so on the south side) and facing the corner of Bromley and Sherbourne streets. Given his description, it appears it could not be the passenger's side of the parked vehicle that she hit, but the driver's side. He explained that she was coming from around the corner from Sherbourne onto Bromley. The damage was so extensive that she had to exit from her passenger side.

[7] He testified that she was uninjured and calm but shaken up from the collision so he invited her to sit on the front steps of his house. She explained to him it was her mother's car. He could smell alcohol off her breath. He asked her if she had been drinking. She said she had a few drinks and was going to the store to get cigarettes and that the reason for the collision was because her head was down looking at her phone.

[8] He testified that he believes they talked for about 15 minutes or maybe less and she advised him to call the police. After refreshing his memory with his 911 call, he recalled that he was asked if he thought she was intoxicated and answering that he did not think so. He was of the view that the police took longer than he expected to arrive and estimated that time to be approximately 20 or 25 minutes. He was with her the entire time. She did not drink nor smoke during this time.

[9] He did not note any signs of impairment, specifically, when she exited her car and walked to the steps of his house, she was not unbalanced or unsteady on her feet; while they spoke, she did not have a slurred speech and was coherent in her conversation with him. He did not know her prior to that night. He saw her again the next day as he brought her keys back. They talked for about fifteen minutes and he only saw her again the day of her trial.

ii. Cst. Andrew Badeen

[10] Cst Badeen was one of the two officers attending the scene. He indicated he received the call at 12:55am and arrived at 1:03am. He dealt with the collision scene and took a statement from Mr. Anderson. He described the collision scene similarly as Mr. Anderson. Therefore, both driver's side of the vehicles collided as Mrs. Martin was coming from the east towards the west, she collided with vehicle parked on the south side of Bromley facing east.

[11] He asked Mrs. Martin, while she was in the custody of Cst Spence, inside the police cruiser, for the car registration and proof of insurance. She told him she thought it must have been inside the vehicle as this was her mother's car. He searched inside the vehicle and was able to confirm the ownership of the car but was unable to locate the insurance card. He did not locate any alcohol either. At around 3:00am, he served her with provincial offences notices.

[12] During those two brief encounters, at the scene and at the police station later on, he did not notice any signs of impairment in her speech, her dexterity, her eyes or her general demeanor.

iii. Cst. Germane Spence

[13] Cst Spence testified that he has experience dealing with persons under the influence of alcohol and specifically with impaired drivers as he explained he dealt with more than 20 in his eight years experience as police officer.

[14] He testified that he received the dispatch at 12:55am, arrived on scene at 12:59am, observed the collision scene, Mrs. Martin outside her vehicle, approximately five feet away from him, walking towards him on the roadway. He testified that she was unsteady on her feet and at one point leaning on her car "apparently to keep her balance". In his notebook however, he had wrote that she was slightly unsteady on her feet and leaned on her vehicle while speaking to him. He also noticed her eyes to be red, bloodshot. He asked her how the collision happened. He did not note this conversation verbatim but attributes her words to be that she was coming around the corner and lost control and collided. He testified that while speaking to her he detected an odor of alcohol from her breath and asked her about it. He did not recall how much specifically, but she would have advised him that she had a couple of glasses of wine at 9hpm. He indicates that at this point, he believed that she was impaired and made the roadside demand at 12:59.

[15] He explained that he understands the two mechanisms to proceed to charging an accused of impaired driving, that is either as a result of having reasonable grounds to believe the person is impaired or as a result of having reasonable suspicions, making a demand of breath sample in the approved screening device resulting in a fail. However, he explained that even though he believed she was impaired he always uses the approved screening device to confirm his grounds of arrest. He acknowledged that he had never met her before that night and does not know the condition of her eyes at that time of night or at 9:00am. He acknowledged that the moment of unsteadiness was when she was walking towards him. When asked if he had made further observations, he indicated he did not recall and did not make note of it either.

[16] He does not recall if he asked her when she last completed her drink but he recalls that he did not ask her if she had smoked a cigarette. He proceeded to administer the test. The first two tests were insufficient but he received a proper sample on the third and it registered a fail at 1:05am. He did not recall if she said anything after he placed her under arrest and he did not make any note to that effect either. He read her constitutional rights and cautions and departed the scene at 1:21am for the police station and they arrived at 1:30am. He did not recall any conversation during the transportation and did not note any signs of impairment during this time. He paraded her to the cellblock sergeant. He described her demeanor during the interaction with the sergeant as being the same way as she was on scene: alert. He then brought her to be searched by the special constable, he put her in contact with a lawyer and he finally turned her over to the qualified technician at 2:09am. He testified that he understood the importance of noting signs of impairment. He did not note any signs of impairment during this time. However, he testified that he did recall her being unsteady on her feet but could not specify when and where during this process. In fact, he considered that the collision could have affected her unsteadiness on her feet at the scene but not her bloodshot eyes. He does not recall Mrs. Martin slurring her words nor fumbling with her wallet.

[17] Nevertheless, he would have rated her level of impairment to be six out of ten. In his range of levels, someone with bloodshot eyes but not unsteady would be a two, while someone with a slight unsteadiness jumps to a six out of ten.

iv. Cst. Ceasar Weigelman

[18] Cst Weigelman is the qualified technician in this case and has been a performing these duties for 2.5 years, has seen about 40 subjects as a technician and another 30 as an investigating officer.

[19] He took custody of Mrs. Martin at 2:09am in the breath room, took the first breath sample at 2:21am and the second at 2:44am, with respective readings of 168mg% and 165mg%. He transferred custody of Mrs. Martin at 2:46am.

[20] During his time with her, he noted that she was initially anxious and a bit nervous to use his words, as she was moving or fidgeting on her bench. He noted that her eyes were watery but not bloodshot. He did not note any difficulty with her walking or her balance. She was cooperative. She told him she had a couple of glasses of wine at her house earlier but he did not know exactly when, but it was earlier at her house. He did not note any signs of impairment even though he is trained not only to look for them but also to record or note them on a form: Alcohol Influence Report.

v. Mr. Randal Warren

[21] Mr. Warren is the forensic toxicologist. After the Mohan voir-dire, he testified that in the course of a request from the investigating officer to provide him with a letter of opinion, he received a number of documents amongst which the time of driving in this case was estimated to be ranging from 12:15am to 12:59am; the subject was female; her weight was 124 pounds and that the Intoxilyzer test records indicated results of 168mg of alcohol in 100mL of blood at 2:21am and 165mg of alcohol in 100mL of blood at 2:44am. It was his opinion that the instrument was in good working condition and had been operated properly.

[22] In providing a read back or a projected BAC (Blood Alcohol Concentration) at the time of driving, he explained that four factors are considered in every case and form the assumptions within which he works to obtain the projected BAC and they are listed in his report as:

• A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100mL per hour.
• Allowance for a plateau of up to two hours.
• No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.
• No consumption of alcoholic beverages after the incident and before the breath tests.

[23] He provided his opinion that with these factors in mind, the BAC at the time of driving provided to him, would have been between 160mg to 200mg of alcohol in 100mL of blood. He also calculated the BAC to be between 160mg% to 210mg% should the driving occurred between 11:45pm and 12:30am.

[24] He then provided his opinion as to the BAC should there have been bolus drinking 15 minutes prior to driving. He corrected his report in cross-examination since he had made an error in converting Mrs. Martin's weight from pounds to kilograms and opined that to have a BAC at 80mg% during the time range of driving of 11:45pm and 1:00am she would have had to drink 2.25 to 3.5 glasses of wine; more specifically, he calculated that if she had 2.5 glasses of 5 oz. wine (at 13% alcohol v/v), her projected BAC at 12:20am would be between 70mg% to 90mg%. Therefore, he agreed that it would not be certain that her BAC would have been over 80mg% at the time of driving.

[25] He also offered the opinion that, "based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment), (…) impairment with respect to driving becomes significant at a BAC of 50mg% and increases from then onward." He testified that he could not be more specific to Mrs. Martin, never having met her, tested her elimination rate or driving skills or as to any given person's specific ability to steer the stirring wheel for example. This applied to a person in the population, in general terms. He also testified that a person could be impaired without showing signs of intoxication, due to tolerance.

vi. Mrs. Cynthia Martin

[26] Mrs. Martin testified that she resided alone at 2001 Carling Ave and on May 18, 2015, a long weekend, she had her mother's car as her was at the garage and her mother was in British Columbia, helping Mrs. Martin's sister pack to prepare for her return to Ottawa. She described her day as having a golf lesson mid-day, attending her friends place in Vars until about 9:00pm and returning home at about 9:30pm. She indicated that she had two or three beers between 5:00 and 8:00pm and had dinner with her friend. She also indicated that once home, she finished some home chores and got ready to Skype with her sister, as they routinely did so about once a week. At 11:15pm, they connected and she opened a bottle of red wine (Jackson Triggs, Shiraz, at 13% alcohol v/v, 750mL or 25.4fl oz.). They chatted and drank wine. They had two glasses when she poured another one before they said good night; her sister's phone rang and she had to go. It was approximately 11:59pm.

[27] She explained that she was going to go on her balcony to have a cigarette when she realized she was out of cigarettes. Given it was a long weekend, she was not working the next day and decided to leave to get cigarettes so she would not have to go anywhere the next morning. She finished the bottle of wine at approximately 12:13am and left to go to the Esso gas station on Carling, at the corner of Sherbourne. She estimated the time to get to the convenience store at the Esso to be less than a minute; there was no one inside the store and it took no more than two minutes to purchase the cigarettes; from Sherbourne, she turned onto Bromley; not sure where her phone was, she looked in her purse on the passenger's seat for it and that is when she collided with the parked car.

[28] She testified that she did not feel any effects from the alcohol and this is why she decided to drive to the store. She explained that she often drinks that specific wine because it seems to sit well with her: she feels fine with it, no headaches, no feeling of noxiousness. She was happy and excited her sister was returning soon to the Ottawa area. She also explained that the purpose of drinking the entire bottle was to feel more relaxed, settling down, she was not doing anything, just unwinding her body and mind. When the suggestion was put to her that her decision to drive was a lack of judgment, she indicated that if she had felt the effects of the alcohol, it would have been but since she did not, she felt comfortable with her decision. She explained that now that she better understands the scientific evidence (not all those readings and numbers, she added) she might not make those choices again as she is better informed now but she would not qualify her decision as a lack of judgment then.

[29] She admitted lying to the investigating officer in relation to having consumed alcohol at 9:00pm. She did not recall having told the officer that she had lost control of her car but she agreed that it was not true as the reason for the collision was because she was looking for her phone. She admitted not being truthful to the officer because she was scared.

Analysis

[30] As indicated at the outset, two issues were raised in this case.

1. Bolus Drinking

Did Mrs. Martin consume alcohol shortly before driving, therefore affecting the identity of the results at the time of testing versus her blood alcohol concentration at the time of driving?

[31] Mrs. Martin testified openly, without hesitation, articulately. Her evidence was logical and without contradictions. It is corroborated partly by Mr. Anderson's evidence: she did not have her phone as she asked him to contact police; she told him she had wine at her house and was going to get cigarettes at the corner store; she had her mother's car. I therefore accept her evidence that the collision happened as a result of searching for her phone in her purse on the passenger's seat. The Google map of the area depicting her residence, the Esso where she purchased her cigarette and the location of the collision and of Mr. Anderson's address, also corroborates her testimony as to the timing of her last drinking and her driving.

[32] Nothing in her evidence led me to believe that she was crafting her consumption of alcohol to fit her purpose. In fact, she readily admitted to Mr. Anderson that she consumed wine at her house. She did not hide the fact that she consumed alcohol to the officers either but she did admit lying to the officer about the timing of her drinking as a result of being scared. Of course this can be interpreted as being consistent with someone who knows or realized has done something wrong in the sense of having consumed alcohol. But she is not denying this fact. She did consume alcohol.

[33] It is not for this court to rely upon common sense to determine how normal people drink within a window of an hour. This would prove to be an impossible task where common sense would not be the best tool and where normal people could hardly be defined. But it is for this court to determine whether I accept that Mrs. Martin, on May 18, 2015, drank a bottle of wine, while Skyping her sister and before leaving to get cigarettes. She testified that it was not unusual for them to Skype and drink wine together and given the time zone difference they Skyped later at night for her. There is nothing unreasonable about her evidence. In the whole of the circumstances and in the totality of the evidence before this court, I am prepared to accept that she drank that bottle of wine before leaving with her mother's car to get cigarettes at the corner store.

[34] I am mindful of the comments of our Supreme Court in R. v. St-Onge Lamoureux 2012 SCC 57, [2012] 3 S.C.R. 187 at para. 90 and indeed this is one of those rare cases where the "last drink" defense is raised and successfully so. Mrs. Martin's evidence, coupled with the Google map and Mr. Anderson's evidence, all lead me to believe Mrs. Martin's evidence that she thought she would be in and out of her residence within five minutes of her last drink. Not feeling any effect from the alcohol, being conscious about her responsibility not to drink and drive, I am not prepared to qualify her, under the very circumstances of this case, as denoting a "significant irresponsibility" or a "pathological reaction". This is not a post-driving drinking to thwart police investigation.

2. Scientific Impairment

In determining whether Mrs. Martin's ability to operate her car was impaired by her consumption of alcohol, should the court rely on the scientific opinion of impairment at 50mg percent?

[35] Mrs. Martin testified that she did not feel any effect from the alcohol. I also accept her evidence on this point as it is greatly corroborated by each of the witnesses. Mr. Anderson did not notice any signs of impairment and did not believe her to be intoxicated; Cst Badeen and Cst Weigelman, experienced officers, trained to look for and note any signs of impairment did not observe any sign of impairment. The only officer who tendered evidence to this effect is Cst Spence, the investigating officer, and I will deal with his evidence in a moment. It was argued that her evidence did not contradict evidence of impairment as she caused a collision and she testified that she drank to relax her body and her mind. I do not draw a direct link between the collision and her consumption of alcohol. She testified that she was looking through her purse to locate her phone and in fact she asked Mr. Anderson to call the police for her, indicating that she did not have her phone, as she suspected just before the collision. As to the argument regarding the purpose of her drinking being consistent with the toxicologist explanations as to the functions of the body and mind, I would think a hot bath and a cup of tea is often taken for that same purpose, that is to relax the mind and the body – surely one would not conclude that this person's functions are impaired by it.

[36] Now addressing the evidence of Cst Spence. I have concerns with his evidence. Firstly, I find it doubtful that within one minute of arriving at the scene, he was able to observe what he said he did, have the conversation he said he did, and conclude Mrs. Martin was impaired but yet, read the approved screening demand. But this is not the main point of concern I have. What I find to be more problematic is his evidence in relation to the signs of impairment.

[37] He took very little notes, in fact the only notes he took in relation to his observations of her signs of impairment were upon his arrival, during this one minute period of time before making the approved screening demand. Looking at his evidence, he was unable to recall numerous elements of his dealing with Mrs. Martin, including things that he would have asked or said or her answers or whether they had a conversation. However, he would want this court to conclude that he has a memory of observing a slight unbalance, some time, somewhere after that initial observation upon his arrival at the scene. I am not prepared to do so.

[38] Moldaver, J in Wood v. Schaeffer 2013 SCC 71, [2013] S.C.J. No. 71 at para. 64 to 68 reiterate the importance, in fact the duty, of a police officer to make notes to the justice system. Quoting from the Martin's Committee Report, he noted, at para. 66:

The notes of an investigator are often the most immediate source of evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate.

[39] As was the case in R. v. Fisher [2005] O.J. No. 1899, I find that the absence of this important and relevant fact, a classic sign of impairment on a case of impaired driving, in the context of his evidence as described earlier, is relevant to his credibility. Better note-taking might have assisted him in providing the court with more details as to when and where else he saw her unsteady on her feet. Especially given his evidence that he considered the collision as a factor that could have affected her balance, one would have expected a note or some detail as to when and where she was unbalanced after leaving the scene.

[40] Cst Spence's evidence is also contradicted by Cst Weigelman in relation to Mrs. Martin's eyes. Cst Weigelman and Mr. Anderson each spent a considerable amount of time with her and did not note any signs of impairment and Cst Spence, having also spent a considerable amount of time with her, only noted one slight unsteadiness possibly attributable to the collision; he was wavering as to the leaning on her car; and bloodshot eyes.

[41] Crown indicated in submissions that the odor of alcohol on the breath was considered as a sign of impairment by our Court of Appeal in R. v. Stellato, [1993] O.J. No. 18. I disagree. Labrosse J.A. noted the following:

At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyser technician who had observed the classic signs of impairment: erratic driving, strong odor of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet.

[42] In fact, reading the rest of the decision, especially when referring to R. v. McKenzie (1955), 111 C.C.C. 317, leads me to conclude that the Court of Appeal did not consider this one observation as indicative of impairment. The extent of cases in fact, discussing the opposite proposition, also lead me to believe that smell of alcohol on the breath is limited to a possible conclusion of consumption but not necessarily of impairment.

[43] On the totality of the evidence, I am left with no classic signs of impairment. This is a different situation than that presented to the court in R. v. Dick, 1991 CarswellBC 1735, where the accused did nothing to avoid the collision after drinking alcohol and smoking three joints of marihuana and the court concluded that on a combination of factors, the conviction was reasonable.

[44] This leaves us with the evidence of the forensic toxicologist in relation to what was described by counsel as the scientific impairment. This evidence is one piece amongst the rest and in this case, competing against the rest of the evidence.

[45] I am prepared to follow the reasoning of my brothers Nadelle, J. in R. v. Ian Asquith, delivered orally on May 14, 2014, Cooper, J. in R. v. Jurcic, 2009 ONCJ 168 and Renaud, J. in R. v. Slykhuis, as confirmed by the summary conviction appeal court, McMunagle, J at 2013 ONSC 134.

[46] How could an accused person answer to the case alleged against him or her if all was required for the Crown to secure a conviction on a charge of impaired driving was to file a report with a blanket statement in relation to the scientific impairment? Wouldn't this create a strict liability offence? In fact, from this scientific community agreement, every time someone is charged or convicted of driving with a BAC over 80mg%, that person could automatically be charged or convicted with impaired driving. However, these two offences are distinct from one another.

[47] I suspect the reason why there is no case law to support the Crown's position might be because courts are not prepared to create a strict liability offence or as discussed in Slykhuis, not to impose a reversal of the onus on the accused.

[48] For Mrs. Martin to be found guilty of the offence of impaired operation, the Crown still bears the onus to prove it beyond a reasonable doubt. Even though the test in Stellato is one of "slight impairment", the Crown still has to prove that slight impairment beyond a reasonable doubt. The burden cannot shift to the accused and the court has to be satisfied beyond a reasonable doubt that the evidence is sufficient to convict. In this case the only evidence on this issue is the blanket statement of the expert opinion. When weighing the totality of the evidence, the absence of the classic signs courts have relied upon for so long, I am not prepared to attribute any weight to this piece of evidence. It is not possible to draw any inference or to conclude beyond a reasonable doubt whether Mrs. Martin specifically fits within this blanket statement.

[49] Accepting the Crown's argument in this case would mean that, even though in the absence of classic signs I have a doubt and her evidence raises a doubt, nevertheless, on the scientific evidence in relation to the general population, I should convict. In fact, this would go directly against everything we know about the application of a reasonable doubt. It also seems to be what the Supreme Court of Canada discussed in R. v. St-Onge Lamoureux, idem, at para. 24 in relation to section 258(1)(c), as it then was at that time, about the statutory presumption violating the right to be presumed innocent if a judge could convict a person even though a doubt subsisted. In such a case, what else is an accused to do in the face of such scientific opinion evidence, of a general nature (in relation to the population in general), if not to disprove this scientific affirmation or to prove on a balance of probabilities that her abilities to operate a motor vehicle were not impaired by her consumption of alcohol at the time of her driving?

[50] Having accepted the accused's evidence on this issue and having concluded in the absence of signs of impairment, to accept the scientific opinion in a blanket statement for the population in general as opposed to Mrs. Martin herself that she would have been impaired at 50mg% or 70mg%, seems to allow an impermissible shortcut for the Crown and an impossible and unfair burden to the accused. This would constitute an infringement of the right to be presumed innocent.

Conclusion

[51] On the totality of the evidence, after having considered the whole of the evidence, counsels' able submissions and the case law they have presented, I find Mrs. Cynthia Martin not guilty of both counts.

Released: April 26, 2016

Signed: Justice Julie Bourgeois