Court File and Parties
Date: May 18, 2017
Court File No.: Brampton14-12219
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jasmeet Dhillon
Before: Justice Paul F. Monahan
Counsel:
- V. Aujla, counsel for the Crown
- D. Paradkar, counsel for the defendant Jasmeet Dhillon
Heard: April 18 and 19, 2017
Reasons for Judgment released: May 18, 2017
Reasons for Judgment
MONAHAN J.:
Introduction and Overview
[1] Ms. Jasmeet Dhillon is charged with having operated a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code of Canada (the Code). She is further charged with having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Code. The offences are alleged to have occurred on or about September 18, 2014.
[2] The trial was held before me on April 18 and 19, 2017.
[3] There was no Charter application filed.
[4] The primary issue on the over 80 charge is whether the Crown has proved the underlying assumption in the toxicologist's report that there had been no significant consumption of alcohol just prior to the time of driving, sometimes referred to as the "no bolus drinking" assumption. If they have proved it, the over 80 case would be made out. If they have not, the over 80 case would not be proved beyond a reasonable doubt.
[5] The primary issue on the impaired driving charge is whether the Crown has proved beyond a reasonable doubt that Ms. Dhillon's ability to operate a motor vehicle was impaired by alcohol at the time of driving.
[6] The Crown submits that both charges have been proved beyond a reasonable doubt. The defence submits that neither charge has been proved to the required standard.
Overview of the Evidence
[7] I will give an overview of the evidence. I will expand upon the evidence in my consideration of each of the issues below.
[8] The Crown called three police witnesses: Constable Herritt; Constable McNamara; Constable Saini. The breath samples were taken outside of the two hour requirement for the presumption of identity to apply. As a result, the Crown called a toxicologist, Dr. M.R. Corbett. The defence called the defendant, Ms. Dhillon.
[9] It was the evidence of Constable Herritt that he was driving a fully marked cruiser with Constable McNamara on the evening of September 17, 2014. They were travelling through a mall known as Trinity Commons Mall in Brampton. They saw a vehicle coming from some distance away towards them that was going at what they thought was a high rate of speed and did not appear to have stopped at a previous stop sign but they were not sure if it had stopped or not. Officer Herritt said that as that vehicle (driven by Ms. Dhillon) approached from a southerly direction the four-way stop that the officers were approaching from a northerly direction, the vehicle drove straight through the stop sign without stopping. The officers activated the police vehicle's lights and a few seconds later they activated the siren but the vehicle kept on going very slowly through a three-way stop and then a further three-way stop until it pulled into a handicapped parking spot. When she did stop, Officer Herritt heard Ms. Dhillon speak to Officer McNamara as he stood at the car door window. Officer Herritt thought that her speech was slurred and that her eyes were watery. Ms. Dhillon was placed under arrest by Officer McNamara for impaired driving and handcuffed at the rear.
[10] Officer Herritt searched the vehicle upon her arrest. He located an empty bottle of Bacardi (13.2 ounces) in the driver side door, and a further empty bottle of Bacardi (also 13.2 ounces) underneath the seat. Each bottle was associated with a receipt from the LCBO from that day with one of the receipts being from 5:03 p.m. and the other receipt being from 7:20 p.m. Further, the officer found a McDonalds cup with ice with dark liquid in it. There was also a thermos with dark liquid and ice which smelled like alcohol. The MacDonalds cup did not smell of alcohol.
[11] I note also that Officer Herritt searched the rest of the vehicle for the keys and could not find them. He asked Ms. Dhillon for them and she told him to "fuck off". When he told her a window was down, and if it rained the car would get wet, she said "I don't care, I have money you asshole." She used foul language with the officers from the beginning of her arrest and thereafter throughout the night.
[12] Ms. Dhillon was placed in the back seat of the cruiser. It was necessary to remove her from the cruiser as the officers were looking for the car keys. When she stepped out of the vehicle she stumbled forward into Officer's Herritt. Thereafter she was leaning on the cruiser.
[13] Sometime after her arrest, Ms. Dhillon requested a Punjabi translator even though she had previously indicated she was a teacher who taught both law and English and she herself spoke perfect English. She also had a panic attack at the station prior to providing a breath sample and this led the officers to take her to the hospital where she was ultimately medically cleared. Her walking and speech, according to Officer Herritt, appeared alright after the initial arrest.
[14] Constable McNamara testified. He was travelling with Constable Herritt. He also observed the vehicle driven by Ms. Dhillon from some distance and thought perhaps it did not stop at a stop sign in the distance. As her vehicle approached, he saw her drive straight through a further four-way stop without stopping. This led the officers to pull her over and again he confirmed similar evidence to that given by Officer Herritt as to how she drove slowly after the police activated the lights and sirens on the police vehicle and that she travelled through two stop signs (stopping appropriately) before doing so. He said that when he first approached Ms. Dhillon she was having a hard time maintaining eye contact with him. He noted that her speech was slurred and her eyes watery and he formed the opinion that she was impaired by alcohol. He noted the empty Bacardi bottle in the door. He placed her under arrest and gave her rights to counsel and caution and made a breath demand on her. Officer McNamara noted that when he handcuffed her, she was swaying.
[15] He thought her walking at the station was quick and steady. He confirmed that it was necessary to take her to the hospital because she said she was having a panic attack. He said her speech was still slurred back at the station. She spoke to counsel of choice at the station. Officer McNamara said that when he was in the breath room with Ms. Dhillon before she gave any samples, she said she did not understand English and wanted a Punjabi interpreter even though she had been speaking English perfectly with the officers. An Officer Dhami became involved and apparently started translating into Punjabi. At around this same time, she said she was having a panic attack and so the officers took her to the hospital. Later at the hospital she said she was fine.
[16] She answered a number of questions of Officer McNamara that he asked her and she used foul language in respect to at least one. He asked her where she had been drinking and she said she had been drinking at home. She also said "I messed up I'm sorry."
[17] Constable Saini testified that he was asked to assist with Punjabi translation. Constable Saini testified that he was born in India and took Punjabi in school until grade 12 when he was 19 years of age. After he was asked to assist with translation, he spoke to Ms. Dhillon. He could see that she could not speak Punjabi in a way that he could understand it. She told him there were various dialects of Punjabi which he said at trial was not correct. She did not speak Punjabi well nor did she understand him when he spoke Punjabi so he told her just to speak English which she did.
[18] She ultimately provided breath samples at the hospital at 12:14 a.m. and 12:37 a.m. on September 18. They registered truncated readings of 140 and 130 milligrams of alcohol in 100 millilitres of blood respectively. The defence conceded that the samples were accurate and that the Intoxilyzer 8000C was functioning properly even though there were issues about the certificate. After the breath samples, she told Officer McNamara that she was on a drug called Champix, which she said was used to help a person quit smoking.
[19] Dr. Corbett testified as an expert toxicologist. His testimony was that based on the truncated reading of 130 mg of alcohol in 100 ml of blood obtained at 12:37 a.m. on September 18, 2014, his opinion as to her blood alcohol content as of 8:55 p.m. (the time of driving) was a range of 146 to 204 milligrams of alcohol in 100 millilitres of blood. It was based on a number of assumptions and the only material assumption in issue was that there was no significant consumption of alcohol just prior to the time of interest. He expanded on this to say what he meant was the no consumption of 5.8 ounces of alcohol (40% alcohol by volume) in the 15 minutes prior to driving, namely between 8:40 and 8:55 p.m. He based this opinion on a female person who was 230 pounds. There is no issue that this fits the description of Ms. Dhillon at the time.
[20] Ms. Dhillon testified that she is currently 31 years of age. She said that she had met her husband in 2009 and married him in 2011. She said that her association with her husband led to increased drinking on her part. She said it was the relationship with her husband abusive. She said he abused her both verbally and physically. She testified that on the day before these events (September 16) she and a girlfriend had drank some alcohol which belonged to her husband and she planned to replenish it. As a result, she purchased alcohol the next day on September 17. That alcohol was the 13.2 ounce bottle of rum associated with the 5:03 p.m. purchase. Later in the evening she decided that she would buy some alcohol for herself to drink and she did so at a different LCBO at 7:20 p.m.
[21] She testified that her ex-husband telephoned her at 8 p.m. on September 17, 2014 and was upset with her and spoke to her in an abusive manner. This led her to drink ¾ of one of the bottles quickly and then to go into a Home Depot to purchase something. When she returned to the vehicle she testified that she received another call from her husband at approximately 8:40 p.m. which led her to consume the remaining ¼ bottle of the first bottle and a further ¼ bottle of a second bottle. She did so mixing it with a soft drink she had purchased at a McDonalds earlier in the evening. She testified that she left the Home Depot and followed her usual route to drive out of the shopping centre. She said that she did a rolling stop at a 3-way stop and did not notice that there was a police car coming from the opposite direction until after she had rolled through the stop sign. She noted that they had placed their lights on but she didn't know it was for her. She began to drive slowly. They then placed the sirens on. She realized they were pulling her over. She said she panicked and poured the remaining ¾ of the bottle of rum on to the carpet of her vehicle.
[22] She testified that she did not feel impaired at the time of driving. She also testified that she was taking a drug called Champix to help her quit smoking. She said it could cause her to feel depressed, to be anxious and to act "maybe irrational". A short description from the internet of some of the potential side effects of that drug was entered into evidence on consent. It included causing anxiety or panic attacks and acting aggressively and being angry and violent.
[23] Ms. Dhillon also testified that she asked for the Punjabi interpreter not because she needed a Punjabi translator but because she wanted someone from her own culture who would understand her predicament and the particular problems she had had with her husband.
Issues
[24] The issues in this case are as follows:
Issue 1: Has the Crown proved the over 80 charge beyond a reasonable doubt?
Issue 2: Has the Crown proved the impaired driving charge beyond a reasonable doubt?
[25] I will address each issue in turn.
Issue 1: Has the Crown Proved Beyond a Reasonable Doubt the Over 80 Charge?
Analysis
[26] As previously indicated above, Dr. Corbett testified that the 130 reading at 12:37 a.m. lead him to give the opinion of a read back range of 146 to 204 milligrams of alcohol in 100 millilitres of blood at time of driving. That was subject to a number of assumptions including the assumption of no consumption of 5.8 ounces of alcohol in the 15 minute period prior to 8:55 p.m. (the time of driving). That is the only assumption at issue in the case on the over 80 charge. If the Crown has proved it, the over 80 case would be made out. If the Crown has not, the over 80 case would not be proved beyond a reasonable doubt.
[27] Dr. Corbett agreed with the defence's proposition to him that if a person consumed ¾ of a "mickey" of alcohol (with a mickey being 13.2 ounces) from 8:10 to 8:40 p.m. and then another approximately 6 ounces from 8:40 to 8:55 this would be consistent with a BAC of 80 mg of alcohol in 100 ml of blood or less at the time of driving and still produce readings obtained in this case from the intoxilyzer. In fact, he said that such a person would be a "straddler" and he could not say if they were under 80 or over 80 at the time of driving.
[28] Whether the Crown has proved the underlying assumption of no significant consumption of alcohol just prior to the time of driving turns in part on a consideration of the credibility of Ms. Dhillon. Whether the Crown has proved the impaired charge beyond a reasonable doubt also requires a consideration of the credibility of Ms. Dhillon.
[29] Let me state clearly that Ms. Dhillon need prove nothing although in connection with the bolus drinking assumption, there is a practical evidentiary burden upon the defence which I will review in more detail below. Further, I note that this is a case in which the three-part framework in R. v. W.(D.) applies.
[30] Before considering whether the assumption in the report has been proved by the Crown, I turn to consider the credibility of Ms. Dhillon and the police witnesses. Before doing so, I note that no witness is entitled to have their evidence considered in isolation. I have considered each witness' evidence in the context of the evidence as a whole.
[31] I do not believe much of the evidence of Ms. Dhillon regarding the timing of her drinking; the timing of the phone calls with her husband; her statements that she did not feel impaired at the time of driving; her testimony as to the stop sign sequence and whether she did a rolling stop or not; her testimony as to the pouring of alcohol on the floor of the car; and her testimony as to why she asked for a Punjabi interpreter/translator. I do accept that she was in an abusive relationship at the time and that she was a heavy drinker as was, apparently, her husband. I will explain below why I disbelieve much of her evidence as I have just outlined. This conclusion impacts both the over 80 charge and the impaired charge.
[32] I will start with the Punjabi interpreter request. Constable McNamara was clear: Ms. Dhillon requested a Punjabi interpreter because she said she did not understand English. All of the evidence is absolutely clear, including the evidence of Ms. Dhillon at trial, that she understood English perfectly. In fact, she teaches both English and law in high school. She testified at trial that she only asked for a Punjabi speaking officer because she wanted to speak to someone from her own culture. She said it was a "comfort thing". I reject this evidence. As indicated, the evidence of Constable McNamara was that she requested an interpreter because she said she could not speak English. When Constable Saini was brought in, it was obvious to him that, in fact, Ms. Dhillon could not speak Punjabi in a fluent manner nor could she understand it. It is clear to me that Ms. Dhillon's purpose in asking for a Punjabi interpreter was to be difficult and obstructionist in her dealings with the police. She was clearly untruthful with the officers in the reasons she gave them for her request for a Punjabi interpreter and she was untruthful in her evidence at trial when she gave her reasons to the Court for requesting a Punjabi interpreter. This seriously undermines her credibility in my view.
[33] I also don't believe that she poured approximately 9.9 ounces of alcohol on her car floor carpet as she was being pulled over. Officer Herritt was asked in cross if he smelled alcohol coming from the carpets or the floor to which he said only "I could smell alcohol in the vehicle". This is not surprising given that there were two empty bottles of rum and a thermos with alcohol in it that smelled of alcohol. I would have thought that if Ms. Dhillon had just poured almost a full bottle of rum on the car carpet just before the car was pulled over, Officer Herritt would have noted it. After all, Officer Herritt searched her car thoroughly. He was looking under the seats, checking the doors and the center console. His search disclosed two bottles of Bacardi, two LCBO bags and receipts including one bag under a seat, a water bottle and a McDonalds cup (both of which he smelled for alcohol). In my view, he would have noticed and could not have missed almost a full bottle of alcohol having been poured onto the carpet of the floor of the car. The absence of evidence on the point supports my conclusion that it did not happen.
[34] Putting aside the testimony of Officer Herritt on his search of the car, it also makes no sense that Ms. Dhillon would pour alcohol on the car floor. Ms. Dhillon said that she poured the alcohol on the floor when she saw the police were pulling her over and she panicked. Common sense suggests that a person would not pour alcohol on the floor. That would be a sure way to have the police smell the alcohol and begin to investigate her. Her only hope when she saw the police pulling her over was that they would not smell the alcohol and would let her be on her way. I reject her testimony that she poured alcohol on the floor and this further undermines her credibility.
[35] Let me address some further areas of Ms. Dhillon's testimony. As previously indicated, on the over 80 issue, there is really only one matter in issue; namely whether the Crown can prove the assumption in the expert's report that there was no consumption of significant amounts of alcohol (5.8 ounces of 40% alcohol) between 8:40 p.m. and 8:55 p.m. I note that Dr. Corbett made a further observation which was not necessary to the Crown's case, namely that in his view the "beverage equivalent" of 14.5 ounces of alcohol was consumed. This was not an opinion as to the true amount consumed. It was simply the 5.8 ounces plus another 8.7 ounces consumed before 8:40 p.m. and assumed to have been absorbed instantly. Dr. Corbett made it clear that the consumption of alcohol could well have been more than this. The 14.5 ounces was simply a "beverage equivalent" meaning the equivalent amount in her system which is being eliminated at any given time.
[36] Ms. Dhillon obviously was in attendance at the trial and heard the evidence of Dr. Corbett. She testified later the same day. She said that she got two phone calls from her abusive husband and this led her to drink large amounts of alcohol quickly. She testified that the two phone calls were at approximately 8 p.m. and 8:40 p.m. Let me deal with the second call first. She testified that she got that call at approximately 8:40 p.m. and then drank 6.6 ounces of alcohol in the 15 minutes between 8:40 and 8:55 p.m. She testified that the first call with her husband was at 8 p.m. and that she thereafter drank ¾ of the bottle, namely approximately 9.9 ounces between 8 and 8:40 p.m. Accordingly, it was her evidence that she consumed a total of approximately 16.5 ounces (6.6 ounces between 8:40 and 8:55 p.m. and 9.9 ounces between 8 and 8:40 p.m.).
[37] In my view, Ms. Dhillon could not possibly remember the exact or even the approximate time of her telephone calls with her husband nor could she possibly remember with the precision she testified to as to how much she drank and when. I have no doubt that her testimony as to the second call and her subsequent consumption of 6.6 ounces was clearly tailored to meet the evidence of Dr. Corbett who identified the period of 8:40 to 8:55 p.m. as being a critical one and the 5.8 ounces as being the minimum amount needed to undermine his assumption in his expert's report. Her evidence as to the total amount consumed by her namely 16.5 ounces (and the pouring away of the remaining of ¾ of a bottle (9.9 ounces)) was also meant, in my view, to match roughly Dr. Corbett's estimate of 14.5 ounces beverage equivalent consumed. I note as well that she told one of the officers that she started drinking at home, not at 8 p.m. when she says she got a call from her husband which she testified to. She tried to explain this inconsistency at trial by saying that she was afraid of the officer finding out that she had been drinking in the car so she told him she had started drinking at home. She also tried to suggest at trial that her answer to police that she started drinking at home was true because she said she had a drink in the morning at home 12 hours before when she woke up at 9 a.m. Her evidence in this regard was contradictory in my view given the two empty bottles of rum in the car with receipts from that day and alcohol in the thermos in the console as well as the 10 ounces she says she poured on the floor of the car (a point I have rejected). Obviously, the officers would know she had been drinking in the car given the clear evidence in this regard. In all of the circumstances, I also reject her evidence that she recalled a call with her husband at 8 pm followed by her drinking ¾ of a bottle immediately thereafter. I do not believe it.
[38] I accept the evidence of the police witnesses, Officers Herritt, McNamara and Saini. They all had notes to refresh their respective memories and none had their credibility challenged in any significant way. They were all fair and reasonable in their respective testimonies. That is not to say that the Crown has proved either charge beyond a reasonable doubt simply because I have accepted the evidence of the police witnesses.
[39] Let me now turn to the question of whether the Crown has proved the no significant consumption of alcohol assumption or the "no bolus" drinking assumption in Dr. Corbett's report. I have discussed the no bolus drinking assumption in the case of R. v. Pyrek (2015), 2015 ONCJ 333, 84 M.V.R. (6th) 297 at paras. 178-193. I recognize that bolus drinking is relatively rare and that an accused has a "practical evidentiary burden" to point to something in the evidence to put the "bolus drinking in play" (see Pyrek, supra at par. 182 quoting from R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.). Absent some evidence to put the bolus drinking issue in play, the Court can draw a common sense inference of no bolus drinking. Where bolus drinking is in play, my view is that the bolus drinking assumption need only be proved on a balance of probabilities. (See Pyrek at para. 187 and R. v. Saul, [2015] B.C.J. 672 (B.C.C.A.) at para. 37).
[40] The Crown submits that the Court should draw the common sense inference that there was no bolus drinking or otherwise find that it has been proved.
[41] In my view, the Court cannot draw the common sense inference of no bolus drinking in this case as there is material evidence that points to bolus drinking. In particular, there are two things to put the bolus drinking issue in play:
(i) The open alcohol in the car, namely two empty bottles totalling 26.4 ounces combined with LCBO receipts showing that they were purchased at approximately 5 p.m. and 7:20 p.m. that day as well as some alcohol in a water bottle in the center console; and
(ii) The clear evidence that Ms. Dhillon was consuming large amounts of alcohol while she drove. While I do not believe Ms. Dhillon's minute-by-minute description of her precise consumption of alcohol on September 17 and its alleged connection to calls from her husband, it is clear to me that she drank both bottles of alcohol containing 26.4 ounces from 5 p.m. to 9 p.m. Not only did she drink a total of 26.4 ounces, she drank 13.2 ounces sometime between 7:20 p.m. and 8:55 p.m. This may have put her over 80 at the time of driving and probably did but there is no evidence on this scenario from Dr. Corbett. Notwithstanding that I found Ms. Dhillon to be an untruthful witness in many respects, the Crown cannot disprove that she may well have consumed approximately 5.8 ounces in the approximate 8:40 to 8:55 p.m. timeframe. The simple fact of the matter is that Ms. Dhillon was driving around consuming two bottles of rum over an approximate 4 hour period while she drove. In the face of the clear evidence that she was consuming large quantities of alcohol while she drove, the Court cannot draw the "common sense inference" that there was no significant consumption of alcohol in the 15 minutes before she was pulled over. In the circumstances, the Crown cannot and has not proved that there was no significant consumption of alcohol just prior to the time of driving even on the balance of probabilities.
[42] I recognize that members of the public would consider a bolus drinking defence to be somewhat absurd. People driving around in their car consuming alcohol as they drive is hardly something to be encouraged. Nevertheless, the Crown must prove the over 80 charge beyond a reasonable doubt and they are unable to do so in this case in my view. There will be an acquittal on the over 80 charge.
Issue 2: Has the Crown Proved the Impaired Driving Charge Beyond a Reasonable Doubt?
[43] As indicated above, my findings on credibility described above also impact on the impaired driving charge.
[44] The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal and approved of by the Supreme Court of Canada (see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.) at 384 affirmed , [1994] 2 S.C.R. 478):
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, 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. (emphasis added)
[45] Absent expert evidence, the Court cannot consider the blood-alcohol readings alone as evidence that the defendant was impaired in his ability to operate a motor vehicle. However, the blood alcohol readings are evidence of the fact that the defendant had alcohol in his system. Together with other evidence, the blood alcohol readings may be considered for the purpose of determining whether the defendant was impaired in his ability to operate a motor vehicle: see R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) (per Himel J.) at para. 6 and R. v. Selvarajah [2011] O.J. 4158 (C.J.) (per Melvyn Green J.) at para. 17.
[46] Ultimately, the Court must ask itself whether on a consideration of all of the evidence, the Crown has proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol.
[47] As concerns the driving, I note that Ms. Dhillon said she did a rolling stop at a three-way stop. The two officers testified that it was a four-way stop and the officers said it was not a rolling stop; rather they said she drove right through the stop sign without stopping at all.
[48] I note that Officer Herritt drew a sketch of the area which largely matched the Google map which Ms. Dhillon identified in her testimony which google map was not put to Officer Herritt.
[49] I do not think Ms. Dhillon was deliberately lying when she said that she rolled through a three-way stop but she was clearly wrong in her memory. The two officers, who had notes of their interactions and their observations, said otherwise and I accept their evidence that it was a four-way stop and that she drove straight through it. It was not a rolling stop. I further accept the officers' testimony that she then moved slowly through two further controlled intersections and then pulled over into a handicapped stop. I also accept the testimony of the two officers that she was going too fast for a parking lot when the officers first saw her and then she drove exceedingly slow after the police cruiser lights and sirens were activated and that it took for an unusual amount of time for her to pull over.
[50] The Crown points to various parts of the evidence including poor driving; slurred speech, swaying and alcohol consumption which it submits proves that she was impaired beyond a reasonable doubt. The defence submits that there was no poor driving – at worst, one rolling stop and that the slurred speech and other issues such as stumbling and watery eyes have reasonable alternative explanations which do not involve impaired driving. The defence also points to the fact that she was walking well, even fast at the police station.
[51] In my view, on a consideration of the evidence as a whole, the evidence establishes beyond a reasonable doubt that the defendant's ability to operate at motor vehicle was impaired by alcohol at the time of driving. My reasons for this conclusion are as follows:
(a) The defendant consumed 26.4 ounces of rum (40% alcohol) and drove her car in the approximately four hours prior to being pulled over including 13.2 ounces in the 1.5 hours prior to being pulled over. This was obviously highly reckless behaviour on the part of Ms. Dhillon. I understand that the Court cannot say that because the defendant consumed this amount of alcohol, she must have been impaired. Nevertheless, the amount consumed clearly gave rise to the potential that Ms. Dhillon was impaired at the time of driving and this potential must be considered in light of the evidence as a whole;
(b) The police observed the defendant drive for some distance and thought she was going too fast for the circumstances and had driven through a previous stop sign (which they were not sure about). This caused them to pay close attention to her as she approached a further stop (a four-way) that they were approaching as well. The two police officers both testified that they saw her from close range drive straight through a stop sign. I have rejected her evidence that it was a rolling stop. It was not. She either did not see the stop sign or did not care. In either case, it points towards significantly poor driving and this points towards impairment by alcohol;
(c) As indicated, her driving was initially too fast for the circumstances of driving in a shopping centre parking lot. As Officer McNamara said, she was not doing 100 kilometres an hour but it was too fast and she could not easily have stopped if someone had ran in front of her. Again, this was poor driving and points towards impairment;
(d) After the officers activated the police vehicle's lights and then their siren, she went very slow and continued through two further stop signs (which she stopped at) and then pulled over. Again, this very slow driving and failing to respond to the police lights and siren, also demonstrates poor driving in my view which points towards impairment. She should have stopped immediately upon the lights and siren being activated even if she didn't realize it was for her;
(e) Both officers testified that her speech was slurred at the time she was pulled over. Her speech was also noted to be slurred later in the evening including when she was speaking to the paramedics. Ms. Dhillon tried to suggest that some of the slurred speech detected was from crying. Again, I reject her testimony in this regard. She was not a credible witness and I note that the slurred speech was detected long before there was any crying. The slurred speech points towards impairment;
(f) Officer McNamara said she was swaying when he handcuffed her; and
(g) Officer Herritt said she was leaning on the cruiser and fell into him when she got out of the cruiser. I understand Ms. Dhillon's explanation was that somehow the fact that she was a large person and had her hands cuffed behind her and was having difficulty fitting into the back seat of the cruiser and that this caused her to fall into Officer Herritt but I reject this explanation. The fall into Officer Herritt happened after she was out of cruiser and had nothing to do with the room in the back of the cruiser. I do not accept her explanation in this regard nor do I have any reasonable doubt about it. The swaying when cuffed and falling into the officer after getting out also points towards impairment.
[52] There is some conflicting evidence on the issues of impairment, including that her walking was fine and even fast at times. However, in my view, a consideration of the totality of the evidence on the facts as I have found them clearly establishes beyond a reasonable doubt that Ms. Dhillon was impaired by alcohol at the time of driving. There will be a finding of guilt on the impaired driving.
[53] Before concluding, let me make one further observation. Ms. Dhillon said she was on Champix (the drug used to quit smoking) and that it made her feel anxious, depressed and "maybe irrational". It was argued that this explained the foul language she used with police. While I find it doubtful, I accept that the Champix might possibly have contributed to the foul language used but it is not a complete answer. In any event, I have not considered the foul language used by her as being a further sign of impairment although it may well have been. However, whatever effects the Champix may have had on her use or not of foul language, it was not argued that it was the source of any of the signs of impairment I have based my conclusion on and, on my view of the evidence it was not the cause of those signs of impairment. The signs of impairment were caused by her alcohol consumption.
Conclusion
[54] To summarize, there will be an acquittal on the over 80 charge and a finding of guilt on the impaired driving charge.
Released: May 18, 2017
Justice Paul F. Monahan