Court Information

Court File No.: Brampton 3111 998 16 9000

Date: 2017-06-13

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Daisy Porras

Before: Justice G. P. Renwick

Heard on: 12 June 2017

Reasons for Judgment released on: 13 June 2017

Counsel

S. Duffey — counsel for the Crown

D. Pledge — counsel for the defendant Daisy Porras

Judgment

RENWICK J.:

Introduction

[1] The defendant, Daisy Porras, is charged with impaired operation of a motor vehicle and operating a motor vehicle with an excess blood alcohol concentration.

[2] The trial proceeded without any applications to exclude evidence. The prosecution called two police witnesses to testify: the arresting officer who had observed the defendant's driving and arrested her, and the qualified technician who received two suitable samples of the defendant's breath and caused them to be analysed by an approved instrument. The Certificate of a Qualified Technician was made an exhibit on the trial.

[3] The defendant testified on her behalf. She introduced 5 colour photographs and an authenticated photocopy of the vehicle registration of the car she drove on the night in question to refute the investigating officer's evidence that the car was dark gray or silver.

[4] At the end of the trial, counsel for Ms. Porras fairly conceded that there were no issues with respect to the proof of the excess blood alcohol concentration count.

Issues

[5] The only contested issue raised by the defendant was whether or not the prosecution's evidence established beyond a reasonable doubt that the defendant's ability to operate a motor vehicle had been impaired by alcohol.

[6] The sole issue can be segmented into three parts:

i. Did the defendant operate a motor vehicle;

ii. Did the defendant intend to operate a motor vehicle after consuming alcohol; and

iii. Was the defendant's ability to operate a motor vehicle impaired by the consumption of alcohol.

Analysis

Excess Blood Alcohol Concentration Count

[7] As mentioned above, the defendant essentially conceded that this charge had been proven. Nonetheless, I must acquit the defendant of this offence unless I am satisfied on all of the evidence that this charge is proven beyond a reasonable doubt.

[8] Given that the defendant testified, I must consider whether or not I believe her evidence. If I do, I must acquit the defendant. If I am not sure whether or not to believe the defendant, then I am left in a reasonable state of doubt by her evidence, in which case, I must acquit the defendant. Lastly, even if I reject her evidence, I must acquit the defendant unless I am satisfied on all of the evidence which is accepted that the charge is proven beyond a reasonable doubt: see R. v. W. (D.), [1991] S.C.R. 742.

[9] As I indicated, there were no pre-trial motions to exclude the results of the breath sample analysis performed by Constable Glen Leonardo, the qualified technician.

[10] In considering the testimony of the defendant, it is clear that the defendant did not actually dispute the qualified technician's analysis of her blood alcohol concentration at the time of driving. In fact, the defendant offered no evidence on this matter. Consequently, although it may not be strictly required in these circumstances, I will briefly consider the W. (D.) analysis to this issue.

[11] Constable Leonardo is a qualified technician and operator of the Intoxilyzer 8000 C, an approved instrument. He testified that he was satisfied after the quality assurance checks and testing he performed before seeking breath samples from the defendant that the approved instrument he was using was operating properly. The qualified technician observed that the defendant provided two suitable samples of her breath directly into the approved instrument and the results of the analysis revealed that her blood alcohol concentration was 100 and 90 milligrams of alcohol in 100 millilitres of blood for the two samples, respectively.

[12] In consideration of all of the evidence heard during this trial, I accept Constable Leonardo's evidence and the results of the defendant's breath testing.

[13] I find that I am not convinced by anything the defendant said about her alcohol consumption that her blood alcohol concentration at the time of driving would be anything other than what it was when her breath samples were analysed by Constable Leonardo's deployment of the approved instrument. Not only did the defendant's evidence not leave me in a state of doubt about her blood alcohol concentration at the time of driving, but on all of the evidence I accept, I am not left with a reasonable doubt that Daisy Porras was operating a motor vehicle with an unlawful and excessive blood alcohol concentration at 4:30 am on 18 July 2016.

Impaired Operation Count

[14] The defendant did not challenge that she was operating a motor vehicle on 18 July 2016 when she was stopped by Constable Roman Marchyshyn of Peel Regional Police. The defendant readily admitted during her testimony that she had consumed alcohol in the hours preceding the traffic stop. The defendant testified that she had only consumed two drinks of vodka and water (approximately one ounce of vodka in each) and one beer.

[15] The only issue raised during this trial is whether or not the defendant's prior voluntary consumption of alcohol impaired her ability to drive a motor vehicle on the early morning of 18 July 2017. Constable Marchyshyn testified as to his belief that the defendant's ability to operate a motor vehicle was impaired by alcohol. The defendant testified that the alcohol she had consumed had no effect upon her or her ability to drive.

[16] This case raises the issue of credibility. In saying that, I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond a reasonable doubt. In fact, even if I totally reject the defendant's evidence, I must acquit her unless I am not left with a reasonable doubt about her guilt based upon the evidence I do accept.

[17] In R. v. W.(D.), [1991] S.C.J. No. 26, our Supreme Court clarified for triers of fact the governing principles for deciding credibility cases:

i. First, if you believe the evidence of the accused, obviously you must acquit.

ii. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

iii. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [1]

[18] I am also aware that I can accept some, none, or all of what a witness says as truthful, and this remains so regardless of the role of the witness in the proceedings. Although again, I must remind myself that a rejection of the defendant's evidence is not dispositive of whether or not I am convinced of her guilt beyond a reasonable doubt.

[19] Constable Marchyshyn testified that he was involved with another traffic stop when he heard a radio broadcast from the Ontario Provincial Police with respect to a possibly impaired driver on highway 410 north. The radio announcement gave a description of a silver Mercedes swerving and almost hitting a concrete barrier, before possibly exiting at Steeles Avenue. The vehicle had an Ontario license plate BNSD560. Constable Marchyshyn was in the area and used his police computer to check the information for the license plate given. He learned that the registered owner lived at 120 Eldomar Avenue in Brampton, a short distance from his location, and he decided to try and await the arrival of the silver Mercedes.

[20] Constable Marchyshyn parked in a plaza at Kennedy Road and Dean Street. Before long, he observed a silver or dark gray Mercedes heading south bound on Kennedy Road in the curb lane. The vehicle made a wide right turn onto Dean, which would take the car in the direction to head to Eldomar Street. The officer believed that this was the vehicle he had heard about and he decided to stop the vehicle to check the sobriety of the driver.

[21] Shortly after following the car, Constable Marchyshyn pulled over the Mercedes. The vehicle had the license plate BNSD560. The defendant was the driver. The officer described the car as silver or dark gray.

[22] According to the officer, the defendant had an odour of alcohol on her breath, her eyes were glossy, she was slow to respond to the officer's request to put her vehicle into park, she dragged out her words when she answered "no" to a question about alcohol consumption as well as when she told the officer, "come on, I'm at my house, it's right there." The officer asked for the defendant's driver's license. Again, he described her motions as slow and methodic. Despite the defendant's response about alcohol consumption the officer formed an opinion that the defendant was operating a vehicle with alcohol in her body and he made a demand for the defendant to comply with a roadside breath screening.

[23] The officer asked the defendant to get out of her car to accompany him for the breath screening. The defendant was unresponsive. He opened her driver's door and asked her to come with him. Again, the defendant appeared to ignore him. Instead, it appeared that she was gathering her belongings. He asked her to come out of the car a third time and cautioned that he would assist her if necessary. Again, there was no response. After asking the defendant for a fourth time to exit the car, she got out.

[24] As they walked to the police car for the breath screening, the officer described the defendant's movements as "very slow to move, as she walked, she waddled from left to right." When asked to stop walking, the defendant took an additional four or five paces, and when she stopped walking, she swayed three times. When he was asked to further describe the defendant's gait, Constable Marchyshyn indicated that the defendant's whole body would lean with each step and she swayed when walking. Given her slow movements and the other observations of the defendant, Constable Marchyshyn formed the opinion that the defendant's ability to operate a motor vehicle was impaired by alcohol and he arrested her for this offence without attempting the use of an approved screening device. The officer noted that there was nothing on the roadway to explain the defendant's unusual manner of walking.

[25] In cross-examination, Constable Marchyshyn remained steadfast in his belief that the vehicle in question was a silver or dark gray Mercedes despite being shown photographs of a similar Mercedes motor vehicle, light blue in colour, with the identical license plates (BNSD560) attached to it.

[26] The defendant testified and produced the registration for the vehicle and photographs taken before the vehicle's purchase in 2014, as well as other photographs taken yesterday in the parking lot at the courthouse. I am satisfied that the evidence establishes that the vehicle was always a light blue Mercedes. There are two interesting points to make with respect to this error on the officer's part.

[27] First, the broadcast from the OPP included the description of the Mercedes as "silver." The officer said this on at least three occasions, including his description of the transmission to the qualified technician, which he provided during his examination in chief. Obviously, the radio broadcast is hearsay and it does not prove the colour of the motor vehicle. However, the fact that the description included "silver" as opposed to "blue" or light blue is significant. It tends to support how the vehicle may have appeared that night.

[28] Second, the photographs of the Mercedes indoors and outside the courthouse depict the deceptive nature of the car's colour. Parts of the light blue car appear gray in the colour photographs. I am prepared to accept that the Mercedes appeared as gray but it was actually light blue and the officer was simply, and not unreasonably, mistaken.

[29] Counsel for the defendant also relied upon the defendant's description that she had travelled north on Kennedy before turning left onto Dean, rather than travelling southbound and turning right as the officer testified. I reject Ms. Porras' evidence on this point.

[30] It was very early in the morning and the defendant had been in Toronto for 9 hours. Given that it was after 4:00 am, it is completely understandable if the defendant was tired. She had consumed alcohol to the point of having a legally impermissible blood alcohol concentration, and the defendant may have simply missed her exit at Steeles Avenue. I do not draw any adverse inference from the lack of accuracy in the defendant's testimony on this point. To be clear, the main problem I have with the defendant's testimony that she exited the highway at Steeles Avenue is the timing.

[31] In the radio transmission, the Mercedes was believed to have possibly exited the highway at Steeles. The description wasn't definitive. The officer heard this broadcast and left the area of Steeles and highway 410 because he did not see any vehicle matching that general description exiting the highway. The officer was able to check the license plate, learn the vehicle's owner's address, plan a route and park in the plaza at Dean and Kennedy before the defendant arrived at that location. If the defendant had missed her exit, she would have had to travel further north on highway 410 and she would have exited the highway at a subsequent off-ramp, which could account for her delay in arriving at Dean and Kennedy after the officer, and for travelling southbound rather than northbound when approaching the intersection where Constable Marchyshyn first observed her driving. This is completely understandable in all of the circumstances and I find that this is what happened on that morning.

[32] I am supported in this interpretation of the evidence by the officer's description that he saw the headlights of the Mercedes as it approached and turned. The officer testified that his vehicle faced east as he awaited the possible arrival of the Mercedes in that plaza. From his position on the south west corner, he would have seen the defendant's headlights shine directly at him as the southbound vehicle turned right. Whereas, if the Mercedes had travelled north (following the route from Steeles and highway 401 that he took), rather than concentrating on the headlights, he would have seen the driver's side of the Mercedes as it approached the intersection and turned left.

[33] I note that the defendant did not profess to have a better memory of events than the officer. She did not dispute that it took four requests for her to exit her car before she did so. She simply did not remember that. Before being stopped by the police that morning the defendant may well have remembered whether or not she exited highway 410 at Steeles Avenue, but after that police stop, she had much more to think about and I do not draw any negative inferences about the defendant's credibility simply from this error.

[34] The defendant testified that the alcohol she had consumed had no effect upon her. She spoke of her back pain and offered that to explain her slow and deliberate movements and uneven walking. Again, I completely reject this evidence. The defendant is not a reliable historian. The officer described the defendant's unresponsiveness when asking her to put the vehicle in park. The officer described the many attempts to get the defendant to exit her car. Back pain does not explain a complete lack of movement or responsiveness. Nor do I believe that the officer's observations of the defendant were exaggerated. Constable Marchyshyn testified that he observed the defendant's walking at court and it was not the same as her side to side motion or sway on 18 July 2016. I find that the observable indicia of the effects of alcohol upon the defendant were noticeable and accurately noted by the officer.

[35] What, if any, weight should I give to the presentation of the witnesses during their testimony? Many courts have cautioned triers of fact of the dangers of credibility assessments which rely too heavily upon the demeanour of a witness:

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness. [2]

[36] Despite the dangers, triers of fact are not prohibited from reliance upon the manner of a witness' presentation: R. v. N.S., 2012 SCC 72, [2012] S.C.J. No. 72, at para. 25:

It is a settled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges have the "overwhelming advantage" of seeing and hearing from witnesses.

This advantage comes from the ability to assess the demeanour of the witness, that is, to see how the witness actually testified and especially how she responded to cross-examination.

[37] There was nothing noteworthy about Constable Marchyshyn's manner of testifying. However, I must comment on the manner of the defendant's presentation of her evidence. Her delivery was almost wooden, or robotic. Her answers were brief and the evidence was not delivered in a manner that seemed genuine.

[38] Nonetheless, I remind myself that I do not know Ms. Porras. I have never seen or heard her speak before. She must have been exceptionally nervous to have to testify on her own behalf and I acknowledge that she did not appear to be nervous. Her manner of speech and evidence delivery may have been completely authentic. In the end, I am unable to draw any inferences about the manner in which the defendant testified.

[39] As I noted above, I must decide whether or not I believe the defendant's evidence that her ability to operate a motor vehicle was not impaired by alcohol, or if I am unable to decide, I must resolve this by acquitting the defendant. Moreover, even if I completely reject the defendant's evidence, I cannot take that as proof of anything. I must ask in regard to all of the evidence I am prepared to accept whether or not I have any reasonable doubt about the effects of alcohol upon the defendant's ability to operate a motor vehicle on 18 July 2016.

[40] In R. v. Stellato, [1993] O.J. No. 18 (C.A.), affirmed, [1994] S.C.J. No. 51, our Court of Appeal provided the following test, which remains the law for the proof of this offence:

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

[41] Impairment by alcohol is not determinative of impairment of one's ability to operate a motor vehicle: R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (C.A.), leave refused [1996] S.C.C.A. No. 115. There is a distinction in law between impairment generally and impairment of one's ability to operate a motor vehicle. I must determine if the defendant's ability to operate her vehicle was impaired by alcohol to any degree, not whether her functional abilities were impaired.

[42] In considering all of the evidence presented, the defendant's evidence does not convince me that her ability to operate her motor vehicle was not impaired by alcohol. As I indicated, the defendant did not dispute that she was unresponsive when asked to leave her car until the fourth request. Yet, she did not recall this taking place. She had been drinking alcohol and I question whether the alcohol had an effect on her perception and/or her memory. I note that the defendant was imprecise on an important issue. When asked about the vodka content of the two mixed drinks she consumed, the defendant replied, that each drink "probably" contained an ounce of vodka.

[43] Am I left in a state of reasonable doubt about any alcohol related impairment of the defendant's ability to operate her vehicle based upon her evidence? I am not. Again, the defendant was not a particularly impressive witness. Her answers were short and unconvincing. However, that is not the end of the inquiry. Am I satisfied that her guilt is proven beyond a reasonable doubt in view of the evidence I do accept?

[44] Constable Marchyshyn was also an imperfect witness. When pressed in cross-examination whether he could be mistaken about the colour of the Mercedes he refused to resile from his view that the car was gray. He actually used the word, "guaranteed." The witness' guarantee is not helpful. In the face of the overwhelming evidence that the car was and remains light blue, this detracts from the overall credibility of this witness.

[45] However, in the end, I am not inclined to decide this case solely on the basis of credibility. When I consider all of the officer's observations of the defendant's ability to operate her vehicle, I have only a slight concern that she may have been impaired in her ability to operate the blue Mercedes because of prior alcohol consumption. According to the officer, the defendant made a wide right turn onto Dean Street.

[46] Constable Marchyshyn did not see or testify to any other issue with the defendant's ability to operate her vehicle. I did not hear that her speed was erratic, too slow, or otherwise inappropriate for the road conditions. The defendant apparently pulled over in a timely and appropriate way without any mention of difficulty in terms of the response time, the speed, deceleration, or braking, its resting position on the roadway, the use of the fittings or controls of the car, or any other function related to the vehicle's operation.

[47] I am extremely concerned that the defendant may have been impaired in her ability to drive as a result of having an excessive blood alcohol concentration, but I have no evidence to support that concern. Even though the defendant was slow to respond, or deliberate in her movements, or had glossy eyes, these indicia are rather generalised and unhelpful without a comparator for instance with the defendant's behaviour on the day of the trial. The officer's observations, some of which are not contested, and several of which I fully accept do not appear to have impacted upon the defendant's ability to operate her father's car that day. Accordingly, I have a reasonable doubt that Ms. Porras was impaired by alcohol in the operation of the Mercedes on 18 July 2016.

Conclusion

[48] I am satisfied beyond a reasonable doubt that the defendant is guilty of operating a motor vehicle with a blood alcohol concentration above 80 milligrams of alcohol in 100 millilitres of blood, but I am much less certain with respect to the impaired driving charge and the defendant is acquitted of that count.

Released: 13 June 2017

Justice G. Paul Renwick

Footnotes

[1] R. v. W.(D.), [1991] S.C.J. No. 26, at para. 28.

[2] R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675 (C.A.), at para. 85.