Court Information

Ontario Court of Justice

Date: October 27, 2017

Court File No.: Brampton 16-11759

Parties

Between:

Her Majesty the Queen

— And —

Kastille Douse

Judicial Officer and Counsel

Before: Justice P.T. O'Marra

Heard on: September 18 and 19, 2017

Reasons for Judgment released on: October 27, 2017

Counsel:

• Ryan Morrow, for the Crown
• Daniel Rechtshaffen, for the Defendant Kastille Douse

Reasons for Judgment

Justice P.T. O'Marra:

Charges and Application

[1] The defendant was charged with having operated a motor vehicle while her ability to do so was impaired by alcohol, contrary to section 253(a) of the Criminal Code of Canada. She was further charged with having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(b) of the Code.

[2] The defendant brought an application alleging breaches of her rights under sections 7, 8, 10(a) and 10(b) of the Charter of Rights and Freedoms and an order pursuant to section 24(2) of the Charter to vitiate the legality of the original breath demand, a subsequent blood demand and the basis of the warrant to seize the defendant's hospital blood sample and medical records.

[3] The trial proceeded on a blended voir dire basis with the consent of the Crown and the Defence.

Factual Background

[4] On Sunday, September 18, 2016, at approximately 8:00 am, the defendant was involved in a serious single vehicle collision at the intersection of Humberwest Boulevard and Williams Parkway in the City of Brampton. Her vehicle had gone off the east side of Humberwest Boulevard and rolled several times. There was extensive damage to the vehicle. The defendant had driven her vehicle through the guardrail and knocked over a light standard. The defendant suffered injuries to her face. Her eyes and lips were swollen. Shortly after the vehicle collision, another motorist arrived and assisted her from the motor vehicle. The EMS arrived and tended to the defendant's injuries. Upon P.C. Thomas' arrival at approximately 8:05 am, the defendant was being treated by an ambulance attendant. At 8:32 am P.C. Thomas formed reasonable and probable grounds that the defendant's ability to operate her motor vehicle was impaired by alcohol and subsequently she was arrested. She was provided her rights to counsel and was cautioned. P.C. Thomas made a breath demand. The officer formed his grounds based on both his observations at the scene and the defendant's limited discussion with the attending EMS personnel. He rode with her in the ambulance to the Brampton Civic Hospital ("BCH"). The ambulance arrived at approximately 8:40 am.

[5] P.C. Darcy, a qualified breath technician, arrived and readied the Intoxilyzer 8000C.

[6] At 10:19 am P.C. Darcy made a breath demand to the defendant. It was obvious that given her injuries to her face, the defendant was incapable of providing suitable samples of her breath.

[7] At 10:40 am the defendant was removed from the resuscitation room and taken for x-rays and a CT Scan.

[8] The defendant returned from radiology, and at 11:18 am P.C. Darcy made a blood demand to the defendant. Apparently, the defendant understood the demand. The attending physician Dr. Levy left to tend to other patients.

[9] At 9:18 am P.C. Darcy observed nurse Rajpreet take the defendant's blood for medical purposes. He indicated to the nurse that he would be seizing that sample.

[10] At 9:23 am the sample was sent to the laboratory for analysis.

[11] At 11:53 am P.C. Darcy attended the laboratory.

[12] At 12:04 am P.C. Darcy was handed a vial that contained the defendant's blood. He seized the vial and put the Centre of Forensic Seal ("CFS") #2L20936 around the vial. A yellow sticker was visible that contained the following information: The Doctor's name, P.C. Darcy's name and badge number and the time that he placed the seal on the vial. The hospital took the sealed sample back, placed it in a plastic bag and locked it in a refrigerator.

[13] On October 19, 2016, P.C. Darcy applied for a search warrant and a production order to seize the defendant's blood sample and medical records from the BCH.

[14] The initial application for the production order to the Justice of the Peace was granted but the application for the search warrant was denied. The Justice of the Peace erroneously felt that the production order was enough to obtain the sample from the BCH. P.C. Darcy re-applied and was eventually granted a search warrant. The defendant's sample of blood was seized by P.C. Darcy from the BCH on October 21, 2016.

[15] On October 21, 2016, P.C. Darcy attended the CFS's depository and submitted the defendant's sample for alcohol analysis.

[16] A toxicology report authored by Forensic Scientist, Laura Gorczynski dated November 29, 2016, was filed in this trial on consent through Forensic Scientist, Inger Bugyra. Ms. Bugyra had been re-assigned to take over this case submission. She testified and had written a toxicology letter of opinion dated May 3, 2017. She was in agreement with Ms. Gorczynski's opinion in this matter. Based on the analysis completed at the hospital, the defendant's projected Blood Alcohol Concentration at approximately 7:59 am was 126 to 156 mg/100 ml.

The Issues

1. Did the Crown prove the chain or continuity of custody with respect to the defendant's blood sample, and therefore proved beyond a reasonable doubt that the defendant did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood?

2. Did P.C. Thomas have reasonable and probable grounds to believe that the defendant's ability to drive a motor vehicle was impaired by alcohol at the time of her arrest and the demand for a breath sample?

3. Considering the answers to issues #1 and #2, did the Crown prove beyond a reasonable doubt that the defendant did operate a motor vehicle while her ability was impaired by alcohol?

The Evidence at Trial

The Accident Scene

[17] On September 18, 2016, at approximately 7:45 am, John Stupo was on his way to see his fiancé in Brampton. He proceeded eastbound on Williams Parkway and approached Humberwest Blvd, which ran northbound and southbound. This was a T-intersection. Williams Parkway was a two lane road that ended at Humberwest Blvd.

[18] As Mr. Stupo turned left and proceeded northbound on Humberwest Blvd, he observed the defendant's motor vehicle resting on the driver's side, east of the intersection.

[19] The motor vehicle was smoking and had incurred significant damage. He testified that the "front end had been taken out….the hood was crumpled…and the bumper was off". There was a large debris field that was created by the vehicle roll over. Clothing, a computer, and other items including the car battery were scattered approximately five feet away from the vehicle.

[20] The light post and guardrail were severely damaged. It was obvious to Mr. Stupo that given the extensive damage to the defendant's vehicle, he believed that the vehicle was travelling northbound on Humberwest Blvd. and after impact rolled over several times. The motor vehicle came to rest approximately 75 feet away from the guardrail that was located at the end of Williams Parkway.

[21] Mr. Stupo stopped his vehicle in order to render assistance. The defendant was screaming for help. Smoke was coming from her vehicle. Mr. Stupo ripped open the passenger side door and helped the defendant from the vehicle.

[22] The defendant had facial injuries. Her eye was closed and her face was swollen. Mr. Stupo gave her water.

[23] The defendant indicated to Mr. Stupo that she was coming from her boyfriend's house.

[24] Approximately ten minutes later the fire department, paramedics and the police were on scene.

[25] The defendant was initially treated by fire personnel. She was given an ice pack to reduce the swelling to her face.

[26] Mr. Stupo testified that at the time of the collision the weather was chilly but dry and that the amount of traffic was light.

[27] Mr. Stupo stated that the speed limit was "60 or 70 km". He stated that the intersection "can be a little confusing" as the left turn lanes were not clearly defined. As well, there was a long bend on Humberwest Blvd that can "throw people off".

[28] At approximately 8:00 am Mark Symington arrived on scene. He was a member of the Peel Regional Paramedic Service. He confirmed that the traffic conditions were light, the roads were dry and that the weather was sunny and clear.

[29] Mr. Symington was familiar with this intersection as the Peel Regional Paramedic Service has a station just south of the intersection. He testified that he has often attended vehicle collisions at this location.

[30] He observed the following: substantial damage to the guardrail, a large debris field around the defendant's vehicle, and heavy front end damage.

[31] Mr. Symington testified that Humberwest Blvd. was a "quick straightaway" and often other motorists "blow by him" travelling 80 to 100 km/hr.

[32] Mr. Symington found the defendant near a tow truck with obvious facial injuries and she had difficulty ambulating. A medical collar was placed around her neck and she was placed on a back board.

[33] Mr. Symington testified that the defendant told him that she was at a friend's house and was on her way home, but never explained how the collision occurred.

[34] The defendant confirmed that she had drank earlier in the evening and had consumed a drink a few hours ago.

[35] Neither Mr. Stupo nor Mr. Symington were asked during their testimony whether they smelled the odour of alcohol on the defendant's breath.

[36] Christopher Dutson was another paramedic that attended to assist the defendant. It seemed that he was the paramedic that was more involved with the defendant at the scene. Unfortunately, he was unavailable to testify. However, as an agreed statement of fact a portion of his notes was entered as exhibit #5 in the trial. Mr. Dutson had taken her blood pressure, heart rate and blood sugar. His note reflected that when he spoke to the defendant he did not detect any alcohol.

[37] At 8:05 am, P.C. Thomas was the first officer on scene. This was his fifth shift as a police constable with Peel Police. Upon his arrival, Mr. Stupo identified the defendant as the driver of the vehicle. At the time the defendant was being treated by a fire department personnel. P.C. Thomas observed that the defendant had swollen lips, numerous facial injuries and her left eye was bruised.

[38] P.C. Thomas also noticed the debris field around the defendant's vehicle. His attention was drawn to a beer can that seemed to be in line with the vehicle's skid marks, the damaged pole and the defendant's vehicle. He testified that he believed that the beer can was open.

[39] He was asked by the Crown if he made any observations about the defendant's sobriety. Initially he stated that he was uncertain if the symptoms of impairment were attributable to the collision. He noted that the defendant's bruised eye was red. He said that when he asked her questions in the ambulance he testified that he smelled a "very strong" odour of alcohol emanating from her breath. In cross-examination P.C. Thomas admitted that he did not write in his notes that the odour of alcohol was "very strong".

[40] He stated at this point in time he formed a "belief" that the defendant operated her vehicle "while impaired". He placed her under arrest, provided her rights to counsel, cautioned her and made a breath demand.

[41] According to P.C. Thomas, the defendant indicated after her arrest that she had consumed "alcohol beverages prior". Again this statement was not recorded in P.C. Thomas' notes.

[42] P.C. Thomas testified that he based his arrest on the following grounds: the defendant drank alcohol, the odour of alcohol on her breath, there was an unexplained single vehicle collision where it seemed that speed was a factor, ideal road conditions and the weather was clear. He testified while the defendant was wearing a stiff medical neck collar, the defendant mumbled and her speech was slurred. He did not record in his notebook the words that she mumbled or slurred.

[43] For a second time, the Crown asked P.C. Thomas what were his observations at the scene that led him to conclude that he had grounds to arrest the defendant and make a breath demand. He testified that he formed an "opinion that she had alcohol in her body and she had been operating while impaired".

[44] P.C. Thomas was asked by the Crown what bridged the gap between "suspicion" and "reasonable grounds". P.C. Thomas testified that it was the excessive speed, the beer can, the significant property damage, and the time of day. Then he added the smell of alcohol.

[45] He testified that on the intoxication scale from 0 to 10, the defendant was an 8 and therefore her level of impairment fell at the higher end to the scale.

The Brampton Civic Hospital

[46] At 8:40 am the defendant arrived at the BCH.

[47] At 9:04 am P.C. Darcy, a qualified breath technician, spoke to P.C. Thomas about his observations at the scene and his grounds for arrest. P.C. Thomas advised of the following:

(1) He received a call for dispatch to a motor vehicle collision and attended the accident scene at 8:05 am.

(2) He observed the defendant's vehicle on its side.

(3) He observed a beer can close to the vehicle.

(4) He approached the defendant and smelled the odour of alcohol on her breath.

(5) She admitted that she consumed alcohol a few hours ago.

[48] P.C. Darcy observed the defendant in resuscitation room #4. She was being treated by hospital personnel. P.C. Darcy testified that he could smell alcohol on the defendant's breath. The defendant fell asleep several times. He also observed the defendant vomit. The defendant had difficulty holding the telephone to her face while speaking to duty counsel. Based on these observations and the information provided by P.C. Thomas he believed that the defendant's ability to operate a motor vehicle was impaired by alcohol.

[49] The defendant had difficulty holding the telephone to her face while speaking to duty counsel. However, P.C. Darcy attributed this difficulty to the pain that she experienced as a result of her facial injuries.

[50] At 9:18 am P.C. Darcy observed Nurse Rajpreet take samples of the defendant's blood for medical purposes. At 9:23 am P.C. Darcy observed Nurse Rajpreet send the samples to the laboratory via the tube system for analysis.

[51] P.C. Darcy made a blood demand, however, the tending physician left in order to assist other patients.

[52] P.C. Darcy recalled that the blood samples were forwarded for analysis and he was acutely aware that often there was blood left over that the police could seize with a search warrant.

[53] At 11:53 am P.C. Darcy attended the Laboratory and was shown a vial of blood with a "yellow sticker" that had the defendant's name, the date and time the blood was drawn. This information coincided with the time and date in P.C. Thomas' notebook.

[54] P.C. Darcy placed a CFS seal on the vial bearing #2L20936.

[55] Eventually the vial was seized and analyzed by the CFS. Forensic Scientist Inger Bugyra's toxicology letter of opinion and Forensic Scientist Laura Gorczynski's Toxicology reports were filed as exhibits #3 and #4 on consent.

[56] The seal number that P.C. Darcy placed on the vial matched the seal number on the vial that Ms. Gorczynski analyzed. However, Ms. Gorczynski's report indicated that one of the assumptions that she made was that the sample was drawn at 9:30 am.

Analysis of Issues at Trial

Issue 1: Did the Crown Prove the Chain or Continuity of Custody with Respect to the Defendant's Blood Sample?

[57] Forensic Scientist, Ms. Bugyra testified that the blood drawn at 9:30 am and the hospital analysis of this sample revealed an alcohol concentration of 31.6 milli of alcohol in one litre of serum. The alcohol analysis completed by Ms. Gorczynski determined that the serum alcohol concentration was the equivalent of a blood alcohol concentration of 126 mg/100 ml. Based on the results of analysis completed at the hospital, the defendant's projected BAC at approximately 7:59 am was within a range of 126 to 156 mg/100 ml.

[58] The Defence argued that the Crown did not prove beyond a reasonable doubt that the blood sample drawn at the hospital was the same sample analyzed at the CFS. As well, the Crown did not establish that the blood was not mislabelled or mishandled. Finally, there was some doubt about whether or not the blood was drawn at 9:30 am which was one of the assumptions made by the toxicologist. It was argued that if the chain of continuity was not established, then the reliability of the expert's opinion was undermined, if so, the defendant must be acquitted on the charge of excess alcohol.

[59] I am not satisfied based on the evidence before me that the chain of continuity was established by the Crown. Furthermore, I am not satisfied that the assumption that the blood was drawn at 9:30 am was accurate. I have reached this conclusion based on the reasons as set out below.

[60] There was neither an affidavit nor testimony provided by a nurse, a laboratory technician or a physician from the BCH in this case. There was not any evidence led about the protocol of taking blood and its analysis. Nor was there any evidence led regarding the frequency or infrequency of mix ups with blood samples at BCH.

[61] More importantly, there was no testimony from Nurse Rajpreet about what she wrote on the "yellow label". P.C. Darcy testified that he saw the vial placed inside a canister, inserted into the pneumatic tube system and sent to the medical laboratory. However, there were no hospital witnesses called as to how the vial was handled at the other end in the medical laboratory. There was an absence of evidence, as to who opened the vial and how it was handled.

[62] There was evidence that P.C. Darcy observed Nurse Rajpreet take the blood at 9:18 am, and sent it to the medical laboratory. However, there was no evidence before me that detailed the importance of the yellow label; how it was generated and what information was on it. At 12:04 pm a technician handed the vial, which had a stopper, to P.C. Darcy. The label indicated the same date, the time that the blood was drawn and the defendant's name was on it. However, no evidence was led to assist the court as to what happened to the vial during the two and half hour period of time. P.C. Darcy never bothered to write in his notebook the name of the laboratory technician that handed him the vial.

[63] Notwithstanding that the serial number on the CFS seal matched the sample serial number analyzed by Laura Gorczynski, the Defence raised significant concerns about the methodology of the receipt of the sealed vial. P.C. Darcy testified that on October 21, 2016 he attended the central receiving office of the CFS in Toronto and "logged in the vial and requested for analysis". Ms. Gorczynski's Toxicology Report indicated that the sample was "processed" on November 14, 2016. There was an absence of testimony regarding the CFS's protocol of maintaining continuity of a vial of blood. Ms. Bugyra testified in Ms. Gorczynski's absence. Ms. Bugyra did not analyze the vial. She never described where the vial was kept or how continuity was maintained over the vial. However, Ms. Gorczynski's report on page 2, at paragraph 6, under the title stated the following that "All item transfers occurring within CFS are recorded in the Laboratory Information Management System (LIMS). A full continuity report from this system is available on request." The Defence did not object to the admissibility of exhibit #4 and only raised the continuity of the vial stored at CFS in submissions. I have some difficulty with the failure to object to the tendering exhibit #4 and then argue that the chain of continuity was broken at the CFS. The chain of continuity may have been broken at the BCH, however I believe that it was not broken at CFS since the report indicated that "all item transfers occurring within CFS are recorded…a continuity report from this system" was available upon request.

[64] Finally, when Ms. Gorczynski analyzed and drafted her report she acted on the assumption that the defendant's blood was drawn and sealed at 9:30 am. However, there was evidence from P.C. Darcy that the blood was drawn at 9:18 am. This was positive evidence that perhaps the seized sample was not the defendant's blood, also this evidence undermined the reliability of Ms. Gorczynski and Ms. Bugyra's expert opinion.

[65] The Crown provided the decision of Justice Monahan's in R v. Pyrek, [2015] O.J. No. 3140. The facts were similar to the case at bar. Justice Monahan found that the Crown had established the chain of continuity of the blood samples, as well the blood was drawn from the accused at a specific time. The time was consistent with the underlying assumption of time that underpinned the toxicologist's opinion. Furthermore, citing the decisions of R v. Porretta, [1995] O.J. No. 2466, leave to appeal denied [1997] O.J. No. 1093 (C.A.), and R v. Phan, [2015] O.J. No. 1627 (SCJ), Justice Monahan agreed that "mix ups" do occur in hospitals but, not a mix up to the extent that a patient with a hospital wrist band whose blood was taken resulted in another person's blood being tested instead of the accused's blood.

[66] The Pyrek decision can be distinguished on its facts. In Pyrek, the Crown called considerable medical evidence specifically in order to establish the chain of continuity of the blood samples through four hospital witnesses. Furthermore, Ms. Bugyra was called in the Pyrek case and she testified about CFS's methodology of maintaining the chain of continuity with respect to blood. Furthermore, unlike the case at bar, the blood sample in the Pyrek decision had not been opened before the seizing officer placed the CFS seal on the vial.

[67] As a result, I find that the Crown did not establish the chain of continuity of the defendant's blood sample. I am not persuaded by the evidence that was before me that the blood sample analyzed was in fact the defendant's. Also, I have some doubt about the reliability of the toxicologist's opinion given the fact there was a discrepancy in an important underlying assumption: The accurate time that the blood sample was drawn.

[68] Therefore, I have a reasonable doubt that the defendant's blood alcohol concentration was in excess of 80 mg of alcohol in 100 ml of blood as I am not satisfied that the Crown did establish the chain of continuity of the defendant's blood sample. Furthermore, even if I am incorrect about the chain of continuity, the toxicologists' opinion about the defendant's BAC exceeded 80 milligrams of alcohol in 100 ml of blood was undermined by the uncertainty of the time her blood was drawn.

[69] The defendant is not guilty of count #2. That charge is dismissed.

Issue 2: Did P.C. Thomas Have Reasonable and Probable Grounds to Believe that the Defendant's Ability to Drive a Motor Vehicle Was Impaired at the Time of Her Arrest and the Demand for a Breath Sample?

[70] Pursuant to section 254(3) of the Code a peace officer must have "reasonable and probable grounds to believe that person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or excess blood alcohol. Reasonable and probable grounds is not proof beyond a reasonable doubt nor is it at the other end of the spectrum evidence of a prima facie case. See R v. Bush, 2010 ONCA 554.

[71] Mr. Justice Durno writing for the panel stated at paragraph 38 the following:

Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

[72] The Court of Appeal has made it clear that the standard for reasonable and probable grounds in the context of a breath demand is not an onerous test: See Bush, supra at paragraph 46.

[73] P.C. Thomas observed the aftermath of an unexplained single vehicle collision that involved the defendant. There was considerable property damage and the defendant was injured. At a minimum P.C. Thomas smelled an odour of alcohol on the defendant's breath. Whether the odour was strong or not, at this stage of the analysis was not as germane to this issue. This was an accident that occurred on a sunny Sunday morning. The roads were dry and clear. In my view, those factors alone can be enough to meet the test. Evidence of consumption of alcohol and an unexplained accident may generate reasonable and probable grounds: See Bush, supra at paragraph 54; R v. Zanat, [2015] O.J. No. 5073 (SCJ) paras. 16-18; and R v. Mould, [1999] O.J. No. 5201 (SCJ) para. 23.

[74] However, P.C. Thomas' grounds were augmented by the location of a beer can in the debris field around the accident scene. He also noted that the defendant was 'mumbling or slurring' but did not record a note of the words that she slurred.

[75] I have considered all observations and facts before P.C. Thomas, in my view there was enough indicia of impairment when viewed objectively to support P.C. Thomas's subjective belief that the defendant had committed the offence of impaired operation of a vehicle that warranted the breath demand.

Issue 3: Did the Crown Prove Beyond a Reasonable Doubt that the Defendant Operated a Motor Vehicle While Her Ability Was Impaired by Alcohol?

[76] The Crown bears the onus of establishing that the defendant's ability to operate a motor vehicle was impaired at the relevant time. Impairment is generally understood as meaning that an individual's judgment is altered and his or her physical abilities, such as coordination or reaction time, are reduced. Evidence which establishes any degree of impairment from slight to great is sufficient to establish this element of the offence: R v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd, [1994] 2 S.C.R. 478.

[77] The Crown relied on P.C. Thomas' observations of a "very strong" smell of alcohol on the defendant's breath, slurred and mumbled speech, the open beer can located near the vehicle, the admission of past consumption of alcohol, falling asleep, vomiting in the resuscitation room as proof of impairment to a degree. P.C. Huntington observed empty beer cans and a flask in the vehicle. At the hospital, P.C. Darcy noted that the defendant fell asleep a number of times. He also smelled the odour of alcohol on the defendant's breath and watched her vomit.

[78] A single car collision without any apparent external cause coupled with the admission of alcohol consumption can make out the offence of impaired driving. See R v. Watts, [2007] O.J. No. 1382 (C.A.), affd [2005] O.J. No. 1908 (C.J). However, where the accused chooses not to testify, a trial judge may not speculate that the improper movements of the accused's vehicle leading up to the accident were consistent with fatigue, inattention or excessive speed rather than impairment. See R v. Bain, 1994 NSCA 84, [1994] N.S.J. No. 194 (C.A.).

[79] The court must be careful not to shift the burden of proof in the analysis but where the accused has shown deficient driving that is only one factor that must be weighed with all the other evidence. Furthermore, a trial judge may not speculate as to other causes of bad driving where no such evidence was called. See: R v. Plater, [2005] O.J. No. 6045, and R v. Rodine, [2007] O.J. No. 986 (C.J). Although in this case there was no positive or direct evidence to explain how the accident occurred on this particular morning, however there was Mr. Stupo's testimony that the lane markings and the bend in the road can cause confusion in a driver's mind. Furthermore, although the speed limit was 60 or 70 km/hr., Mr. Symington testified that vehicles have "blown by him" travelling upwards to 100 km/hr on this "quick straightaway". Therefore, I have found that the smell of alcohol and the accident solely did not give rise to proof beyond a reasonable doubt. The odour of alcohol whether mild or strong, only confirmed the consumption of alcohol but says nothing about the effects of the consumption. It has a shortcoming as a badge of impairment. See: R v. Cooper, [1993] O.J. No. 501 (Prov. Ct.), and R v. Tavone, [2007] O.J. No. 3073 (SCJ).

[80] I have some reservations about the reliability of P.C. Thomas' evidence regarding the fact that he smelled a "very strong" odour of alcohol on the defendant's breath and that the defendant did have slurred speech. He failed to record in his note book the words "very strong", as well as the defendant's statement that she had consumed "alcohol beverages prior". Also, he did not record in his notebook which words the defendant allegedly slurred while she tried to speak to the paramedics. These were important details not to write in his notebook, however this did not cause me to completely reject his evidence due the omissions in his notes. See: R v. Zack, [1999] O.J. No. 5747, and R v. Golubentsev, [2007] O.J. No. 4608. I attribute his lack of police experience for any errors or omissions. This was only his fifth shift as a police officer. His inexperience was demonstrated to this court when he had some difficulty describing the grounds for an arrest and breath demand. He used words that were typically used for an Alcohol Screening Device demand.

[81] In his favour, however, on his pre-printed form titled "Driving Offence and Notes" and under the subtitle "Observations of the accused at the scene" he ticked off the 'speech' box and wrote "lips swollen, with neck brace". The defendant had been "collared" with a stiff neck brace as a precautionary measure to stabilize her neck. The defendant's restricted ability to speak clearly was consistent with wearing a hard neck brace, having swollen lips and other facial injuries caused by the motor vehicle collision.

[82] There was no evidence of the location that the beer can was found, or whether the beer can was empty or if it still contained any contents or was present before the motor vehicle collision. The beer can was never seized.

[83] The observations of the defendant while at the hospital including her difficulty to follow P.C. Darcy's instructions, her inability to hold the telephone while speaking to duty counsel, vomiting, falling asleep, were not unequivocal signs of impairment. In fact, these factors may be entirely consistent with the trauma and pain from the physical impact on the defendant who was just involved in a serious collision. There was positive evidence from P.C. Thomas, P.C. Huntington and P.C. Darcy that the following observed indicia of impairment by each officer did have an alternative explanation which was the impact of the collision on the defendant. I have set out below the observed indicia and the none of the police officer that cited the motor vehicle collision as a possible alternative explanation:

(i) Slurred speech (P.C. Thomas);

(ii) Difficulty holding the phone to her ear (P.C. Huntington);

(iii) Difficulty providing a breath sample (P.C. Darcy);

(iv) Vomiting (P.C. Darcy);

(v) Falling asleep (P.C. Darcy).

[84] I have no evidence of the defendant's blood alcohol concentration at the time of the accident and equivocal signs of impairment, I must not assess each circumstance piecemeal but must consider the totality of the evidence that I do accept, and carefully consider not only the observations alleged to be consistent with a degree of impairment, but also any evidence taken as a whole that might tend to show that the accused was not impaired at the time. When I do take the evidence as a whole I am left with only one reasonable conclusion that I have reasonable doubt that the defendant's ability to operate her motor vehicle was impaired by alcohol. Therefore, the defendant is not guilty of count #1.

Released: October 27, 2017

Justice P.T. O'Marra