Court File and Parties

Court File No.: Orangeville 16-1359 Date: March 26, 2018 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Brent Wigle

Before: Justice Richard H.K. Schwarzl

Heard on: February 1, 7, and 28, 2018

Reasons released on: March 26, 2018

Counsel:

• Ms. Marie Balogh for the Crown
• Mr. Brian Starkman for the Defendant

SCHWARZL, J.:

1.0: INTRODUCTION

[1] The Defendant, Mr. Brent Wigle, stands charged that in November 2016 he drove while drunk and also while having an excessive blood alcohol concentration after having been found in the driver's seat of a car that had gone into a ditch. He submits that the Crown has failed to prove his guilt on either charge beyond a reasonable doubt.

[2] The issues raised in the trial of these charges include whether it has been proven that the Defendant was the driver; a dispute over the time of the incident; whether the police had proper grounds to make a breath demand; whether it has been proved that the Defendant was impaired at the relevant time; and whether the prosecution can rely on the toxicology report to prove the Defendant's blood alcohol concentration and/or impairment.

2.0: HAS IT BEEN PROVEN THAT THE DEFENDANT WAS THE DRIVER?

2.1: Positions of the Parties

[3] The Crown submits that all signs point straight to the Defendant as the driver of the car in this case. They rely on the cumulative effect of evidence given by an independent witness, Nancy Campbell, the report made by the paramedic Nicole Besner and her partner, and the evidence of two police.

[4] The defence submits that if the evidence of identity given by Nicole Besner is excluded the remaining evidence of identification is too frail to establish beyond a reasonable doubt that the Defendant was the driver.

2.2: Is the EMS Patient Care Report Admissible Evidence of Identification?

2.2.1: The Evidence

[5] Nicole Besner is a paramedic. Together with her partner, Kevin Steinke, she prepared a Patient Care Report on November 18, 2016 regarding this incident. Both signed the report on November 19, 2016.

[6] Ms. Besner testified at this trial. Her partner did not.

[7] Ms. Besner said that she has almost no recollection about this call for service. However, she did say that the Patient Care Report accurately sets out all that happened.

[8] The relevant portion of the Patient Care Report concerning the identity of the driver is stated under "Incident History" as follows:

Male patient was driving his car on Highway 109 heading west towards Grand Valley. The patient states he was passing another car and when he came back onto the right side of the road he went too far and hit the gravel with his rear tire. The patient states he felt his car roll and when he looked up the car landed on the wheels the roof was caved in beside him pointed west.

[9] Ms. Besner described how Patient Care Reports such as this one are prepared and provided her best memory of how this particular report was created. She said that as ambulance attendants she and her partner on any given call will always speak to the patient, obtain vital signs, make and note observations, and make care decisions as part of their duties. She said that all data collected is uploaded to software that populates a Patient Care Report which is then saved and produced upon request. All observations made and answers to questions about medical issues of the patient and the incident history are typed in manually then uploaded. Vital signs and other medical data detected and recorded by various instruments are automatically uploaded.

[10] Ms. Besner testified that where, as here, a patient is capable of telling her and her partner what happened, the incident history will be typed after the call because simultaneous or immediate typing can interfere with other, more urgent patient care. Ms. Besner did not clearly remember who spoke to the Defendant about the incident history but believed it was her because she was the senior attendant on scene and, as such, would have been first to meet the patient. She also said that sometimes the incident history will come from other sources such as police, fire fighters, or by standers but was not asked whether in this case that did, or might, have happened.

[11] She said that the recording of the incident history is commenced after the patient is delivered and the ambulance attendants' immediate involvement is no longer required. In this case Ms. Besner said the incident history was probably recorded hours after the incident because the report was not completed that night due to being near the end of their shift. She said the incident history is normally done right after the call as standard practice but she couldn't specifically recall doing it or not before going off shift in this case. The report, which includes much more than the incident history, was completed and signed at 1:00 p.m. the following day which was their next shift.

[12] Ms. Besner said that the recording of observations, answers to questions, and information about the incident given by the patient is done in conjunction with her partner. She will not sign off on a report unless she is either in concurrence with what her partner recalls, or where there is a disagreement or divergence, that difference is recorded. No disagreements were logged in this particular report. After uploading all information, both attendants sign the form to confirm the contents.

[13] She testified that everything in the Patient Care Report in this case is true. She knows that hospital staff and others rely on what is stated in the report. It is clear that Ms. Besner and her partner fulfilled their duty to faithfully and accurately record what they were told and what they observed.

[14] Both parties agree that the admissibility of the incident history contained in the Patient Care Report is to be determined on an assessment of whether it amounts to a past recollection recorded.

2.2.2: Applicable Legal Principles

[15] The basic rule regarding past recollection recorded is set out in Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, c. 28, § 744 et seq. which provides:

1. The past recollection must have been recorded in some reliable way;
2. At the time it must have been sufficiently fresh and vivid to be probably accurate;
3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he "knew it to be true at the time"; and
4. The original record itself must be used if it is procurable.

[16] Properly understood, the rule is an unremarkable exception to the hearsay rule because it says hearsay is admissible in proof of the truth of the contents if uttered in circumstances that offer a guarantee of trustworthiness: P.K. McWilliams Canadian Criminal Evidence, 3rd Edition, section 36:20222.

[17] In R. v. Richardson, the Ontario Court of Appeal set out the following criteria for admissibility under the doctrine of past recollection recorded:

1. Reliable record: The past recollections must be recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.

2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.

3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.

4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.

[18] The absence of memory requirement does not mean that a statement is admissible as past recollection recorded only where the witness has a total loss of memory regarding the relevant events. Wigmore at para. 734 sets out that the past recollection recorded exception can be used where the witness "is either devoid of a present recollection or possessed of an imperfect present recollection". Thus where the witness has an absence of memory of some aspects of the statement but not others, the rule can still apply. Courts should avoid deploying the rule "as inflexible dogma": Richardson, supra at ¶ 30.

[19] The court must assess the reliability of such evidence prior to making a final determination of admissibility under this rule: R. v. Alldred, [2007] O.J. No. 3470 (C.A.).

[20] Admissibility of evidence under this doctrine is only available when the witness has a genuine loss or absence of memory: R. v. Chretien [2009] O.J. No. 810 (S.C.J.) at ¶ 10 to 23; R. v. McCarroll, 2008 ONCA 715; R. v. Myran, [2009] M.J. No. 100 (Q.B.). If the court finds that the loss of memory is not genuine then the rule cannot be used, but the statement may be otherwise admissible by other means including a principled approach to hearsay.

[21] If this rule applies, a writing or memorandum including audio or videotape previously made by a witness becomes the witness' evidence. If admitted by the court, the item is filed as an exhibit and may be used by the court as the evidence of the witness for the truth of its contents.

2.2.3: Legal Principles Applied

[22] On assessing the evidence, I am satisfied that the incident history contained in the Patient Care Report is admissible as past recollection recorded.

[23] The report is reliable because Ms. Besner made it with a partner in circumstances that required each of them to document any disagreements, of which there are none. In other words, she checked the document for accuracy with the help of someone else who was present and there was concurrence on what was reported. The original record was used in court, being a printout of the digital report. Furthermore, the report was made during the course of Ms. Besner's duties that required her and her partner to make accurate reports knowing that others might rely on what they documented. While Ms. Besner acknowledged that sometimes that information contained in the report can come from sources other than the Defendant, there is no evidence or reason to believe that happened in this case.

[24] The creation of the recording was timely. Whether or not the incident history was recorded near the end of shift or early in the next shift, it is clear from the evidence that the report was made while the matter was still fresh in the author's mind. Strict contemporaneity is not required. Given that this incident came at the end of the attendants' shift it is unlikely that an accurate recollection was interrupted by any other call for service or by the passage of approximately 12 hours when their next shift began.

[25] Ms. Besner demonstrated she was devoid of any present memory of what the Defendant said in describing the incident to her and her partner. In the circumstances of this case the witness's lack of memory was bona fide and not an attempt to avoid giving evidence.

[26] There was a voucher by Ms. Besner as to accuracy when the utterances were recorded. She said that all information contained in the report, which perforce includes the incident history, was true. She also testified that the truth of the information was corroborated by working with a partner with a view to either concur or note disagreement. Ms. Besner signed the report as a written voucher for accuracy.

[27] In reaching my conclusion that the incident history set out in the Patient Care Report is admissible, I have not considered any extraneous evidence which may either confirm or undermine any of the four elements of this hearsay exception. Accordingly it is not necessary for me to undertake an analysis of whether or not external evidence can be used when assessing admissibility of past recollections recorded. External evidence, however, not only can but must be used to assess the weight to be given to past recollections recorded when considering my verdicts.

2.3: Is There Any Other Evidence of Identification Beyond the Patient Care Report?

[28] In addition to the admission by the Defendant to the ambulance attendants that he was the driver, there is other circumstantial evidence identifying him as such.

[29] Ms. Besner's Patient Care Report noted that the Defendant had a seat belt mark on the left side of his neck and that he had a small, non-bleeding, laceration on his right hand. For a belt mark to be on the left of one's neck, one must be on the left side of the car which is where the driver's seat is. Mr. Wigle occupied that seat at all times until escorted to the ambulance. The laceration to his hand is consistent with having been in a collision.

[30] Both P.C. Steele and P.C. Spencer found the Defendant occupying the driver's seat with no one else in the car, which was a demolished blue Ford Mustang. Neither officer saw anyone else at the scene who was apparently associated with the car. Each noticed that the passenger side roof was caved in. The officers inspected the car and the area around it. They found tire marks on the shoulder that suggested that the car appeared to be going westbound on the highway, crossed the road onto the shoulder where it left marks before rolling over and landing on its wheels in a deep ditch.

[31] Nancy Campbell said she was driving westbound when a dark coloured Mustang passed her quickly and crested a hill. She could not see the driver or the number of occupants as the car drove past her. After she crested the hill she saw the Mustang that had passed her, or one very much like it, in the ditch across the road. Ms. Campbell approached the car and saw that the passenger side roof of the car was caved in. She remarked that it was a good thing no one was occupying the passenger side of the car. She saw a man sitting in the driver's seat. The man was trying to get out but she told him to stay put. The person only left the driver's seat when paramedics escorted him to the ambulance. In cross-examination Ms. Campbell agreed that she could not be certain that the car that passed her was the one she saw in the ditch. Ms. Campbell was a poor witness when it came to timing. However, when comparing and weaving her evidence with the other admissible evidence, Ms. Campbell's narrative helps prove that the Defendant was the driver.

2.4: Conclusion re Identification of the Defendant as the Driver

[32] Summarizing the facts as I find them, a dark coloured westbound Mustang drove dangerously past Ms. Campbell and out of sight over a hill. Shortly after cresting that hill, a dark coloured Mustang was in the ditch having left tire marks that suggested it had been going westbound when it left the roadway. The Defendant was seen by all witnesses occupying the driver seat of the Mustang that crashed. He had a belt mark on the left side of his neck and there was a minor injury to his hand. No one else was at the scene who in any way appeared associated with the vehicle.

[33] In these circumstances, I am satisfied beyond a reasonable doubt that Mr. Wigle was the operator of the automobile that is the subject of this trial and that he was driving it at all material times.

3.0: THE OVER 80 CHARGE

3.1: Introduction

[34] Several issues were raised in respect of the charge of driving with excess blood alcohol concentration. One issue is whether the breath demand made by P.C. Steele was lawful and if it was not, whether the test results should be excluded for violating any of the Defendant's constitutional rights. Two issues were raised about the Toxicology Report that was filed as evidence, namely whether the time of the incident relied on in the report is accurate and whether the Crown has shown there were no large amounts of alcohol consumed shortly before the collision.

3.2: What Time Did the Incident Occur?

[35] Nancy Campbell was not sure what time the incident occurred. Her evidence on times and timing was poor. For example, she stated that despite seeing a car go past her at a high rate of speed then see it again shortly after cresting an immediate hill some 60 to 90 seconds had passed. She also said emergency services arrived about 30 minutes after she stopped. Logic, the other evidence in this case, and common sense suggests that she probably got the times wrong by a very wide margin. She most likely saw the car again less than 10 seconds after it passed her given the distance and speeds involved. She acknowledged that she is not good at estimating time. With that said, her evidence of the events themselves was reliable in that it made internal sense and was materially similar to external evidence. I accept Ms. Campbell's undisputed evidence that once she came on the scene she saw another motorist call 911.

[36] Again, common sense dictates that when one calls 911 for any reason, and particularly when there is a car crash where there is the possibility of injury, emergency personnel including police, ambulance, and fire services are dispatched promptly if not immediately.

[37] The ambulance attendants received a call for service at 9:35 p.m. and arrived on scene at 9:47 p.m. P.C. Steele recalled getting dispatched sometime after 9:30 p.m. and arriving on scene at 9:40 p.m. P.C. Spencer's recollection as to time was the same as that of P.C. Steele. I accept P.C. Steele's evidence that the location of the incident was a fairly busy highway and that he would expect a collision to be reported very quickly.

[38] Assessing the evidence as a whole, I find that the driving and going into the ditch happened within a few short minutes of either side of 9:30 p.m.

3.3: Were There Lawful Grounds to Make a Breath Demand?

3.3.1: Positions of the Parties

[39] The defence submits that P.C. Steele's breath demand was unlawful. They urge me to find that the officer lacked reasonable grounds to believe that the Defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol. Specifically, the defence submits that the officer ignored evidence such as good coordination that tended to show sobriety, not intoxication. They also submit that officer made an observation of red and watery eyes but no one else did.

[40] The Crown submits that taking the evidence as a whole P.C. Steele possessed both subjective and objective reasons to think that the Defendant's ability to operate a motor vehicle safely was impaired by alcohol when he drove his car into the ditch.

3.3.2: Relevant Legal Principles

[41] Grounds to make an arrest or to make a breath demand must be honestly and subjectively held by the officer and his honest belief must be objectively justified: R. v. Shepherd, 2009 SCC 35; R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at p. 216; R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.); R. v. Bush, 2010 ONCA 554.

[42] There is no requirement that there be direct evidence of alcohol consumption either through observation of the individual or by statement from him or her, as opposed to a reasonable inference, in order to satisfy the requirement of reasonable and probable grounds: R. v. Heidemann, [2002] O.J. No. 2114 (S.C.J.); R. v. Costello, [2002] O.J. No. 93 (C.A.) at ¶ 2.

[43] The officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of the alternative explanations for the observed conduct: R. v. Mitchell, [2004] O.J. No. 435 (S.C.J.) at ¶10. The officer is only required to consider the incriminating and exonerating information to the extent that the circumstances reasonably permit. The inference that the subject is impaired may be reasonable even if it is not the only inference that can be drawn from the circumstances. "Reasonable grounds to believe" does not require the officer to be in a position to dispel or rule out innocent or innocuous inferences that may be drawn from the same observations: R. v. Bush, supra.

[44] "Reasonable grounds" is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly. In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions based on his experience: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.).

[45] The Court must consider the totality of the evidence for the witness' reasonable ground to believe the subject is impaired, not any individual sign on its own: R. v. Huddle, 1989 ABCA 318; R. v. Saulnier, [1990] B.C.J. No. 161 (C.A.); R. v. Elvikis, [1997] O.J. No. 234 (Gen. Div.) at para. 24; R. v. McMillan, [2003] O.J. No. 4284 (S.C.J.). The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive a motor vehicle was impaired by the consumption of alcohol even slightly: R. v. Bush, supra, at ¶ 48; R. v. Gunn, 2012 SKCA 80.

[46] Evidence of consumption of alcohol plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: R. v. Rhyason, 2007 SCC 39 at ¶ 19. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at ¶ 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation: R. v. Bush, supra, at ¶ 57.

3.3.3: Legal Principles Applied

[47] P.C. Steele testified that he made his breath demand based on the following factors:

(a) Ms. Campbell told him that the car in the ditch had passed her while driving erratically;

(b) The officer found the Defendant sitting in the driver's seat of the car;

(c) The Defendant's eyes were watery and glazed over both while in the car and when sitting in the ambulance;

(d) The Defendant's motor skills seemed slow and delayed while seated in the car when he looked for his licence and ownership and again inside the ambulance when he handled his cell phone and health card;

(e) The Defendant appeared to have trouble seeing an object P.C. Spencer was shining a light on and directing Mr. Wigle's attention to it while seated in the car;

(f) The Defendant appeared to awkwardly handle a package of deli meat he was asked to pick up from the floor well of the front passenger seat;

(g) The Defendant tended to slur his words ending in "s" while speaking in the ambulance;

(h) The officer smelled the odour of alcohol on the Defendant's breath once inside the ambulance; and

(i) Once at the hospital, the officer overheard the Defendant tell a doctor that he had two beers earlier around 5:30 p.m.

[48] P.C. Steele agreed with the suggestion that the Defendant had no difficulties with either his balance or his coordination while walking. The officer emphasized, however, that in his experience a lack of unsteadiness does not mean a person is not impaired to drive when put into context of all of the other circumstances.

[49] P.C. Steele also agreed that the Defendant was never clumsy or fumbling. However, he reiterated his reliance on the slowness of the defendant's mind and movements both in the car and in the ambulance.

[50] According to both P.C. Steele and the ambulance report, the Defendant denied being injured in the crash. The Patient Care Report stated that the patient was not in any medical distress, although his blood pressure was elevated.

[51] Ms. Campbell testified that when dealing with the Defendant at his car, she did not recall anything unusual about his speech. She said that his eyes were not red or watery.

[52] Ms. Besner noted that there was nothing in the Patient Care Report regarding any signs of intoxication. Had there been, she would have noted them as part of her duties. With respect to the Defendant's eyes, the Report notes only that they were examined and that both pupils were reactive.

[53] P.C. Spencer gave evidence that while he was seated in the car, the Defendant's mental and physical reaction times seemed slow. She smelled alcohol on his breath and his face seemed red while he was seated in the car. P.C. Spencer testified that she informed P.C. Steele at the scene of these observations. P.C. Spencer did not observe anything unusual about the Defendant's balance, walking, eyes or speech other than his speech seemed delayed at the scene.

[54] The qualified technician, P.C. McGuire, testified that at the time he administered the breath test procedure he made observations of the Defendant including an apparent belt abrasion on his neck, a strong odour of alcohol on his breath, a flushed face, and red rimmed eyes. He noticed that the Defendant's speech was good.

[55] It may well be that the Defendant's slow movements and mental dullness at the scene was caused by being in a serious car crash. However, such characteristics are equally explained by being under the influence of alcohol. It does not matter what the truth is regarding these observations. What is important is that I find that the officer's reliance on these signs was reasonable when examined in conjunction with all of the other factors he took into account. In particular, two undisputed factors made a breath demand reasonable if not inevitable being the odour of alcohol on his breath, which was confirmed at the time by P.C. Spencer and confirmed later at the hospital and at the police station, and the collision for which the Defendant appeared wholly at fault.

[56] I find that P.C. Steele was a conscientious, honest, and careful witness. The lack of confirmatory evidence regarding the Defendant's eyes and speech is immaterial. Even by P.C. Steele's account the slurring of speech showed it to be very slight. I am not surprised no one else noticed. Equally, I am not surprised that P.C. Steele did notice the very slight slur. He was assigned to be the lead investigator and it is obvious that he was making very, very close observations of the Defendant as part of his duties.

[57] If I were to discount entirely P.C. Steele's reliance on the condition of the Defendant's speech and eyes, when considering the evidence as a whole the officer had ample lawful cause to make a breath demand especially in light of (a) the smell of alcohol on the driver's breath (b) a collision apparently caused by the Defendant's own bad driving, and (c) the Defendant's utterance to the doctor that he had been drinking.

[58] Therefore, I find that P.C. Steele had more than adequate lawful grounds to make a breath demand upon the Defendant. Having reached this conclusion, the Defendant's applications regarding his claims of violations of his rights to be free from unreasonable searches and seizures and to be free from arbitrary detention are dismissed.

3.4: Can the Crown Rely on the Breath Test Results Set Out in the Toxicology Report?

3.4.1: Positions of the Parties

[59] The Toxicology Report relied upon by the Crown in this case was based on several assumptions. The defence challenges the factual assumption made by the author of the report that the incident happened between 9:15 p.m. and 9:40 p.m. on the basis that Ms. Campbell's recollection of the time of the incident is hopelessly unhelpful to the Crown. The scientific assumption that there was no consumption of large quantities of alcohol (bolus drinking) within approximately 15 minutes of the incident is also challenged by the Defendant on the basis that I should not reasonably find in these circumstances that bolus drinking did not occur.

[60] The Crown submits that on the totality of the evidence the factual and scientific assumptions in question are adequately supported in the evidence.

3.4.2: The Factual Assumption: Timing of the Incident

[61] Earlier in these reasons, I found as a fact that the driving into the ditch occurred a few minutes on either side of 9:30 p.m. which is well within range assumed by the forensic toxicologist. To summarize, while Ms. Campbell's memory of timing was poor, the other circumstantial evidence of the time of the incident was reliable and convincing.

3.4.3: The Scientific Assumption: No Consumption of Large Quantities of Alcohol Within 15 Minutes of the Collision

[62] The Crown is responsible for proving the facts underlying the scientific assumptions upon which the expert opinion of blood alcohol concentration is based. The matter of bolus drinking is resolved largely on applying common sense that most people do not drink large amounts of alcohol rapidly and then drive, while still recognizing that, while rare, some people do just that. There is a modest burden on the Defendant to point to something in the evidence that creates at least an air of reality that bolus drinking is in play: R. v. Paszczenko; R. v. Lima, 2010 ONCA 615.

[63] In the case at bar, the defence submits that bolus drinking is in play for two reasons. First, that a beer can was found close to the car and second, because the car was not searched for alcohol, there may well have been alcohol inside and within reach of the driver.

[64] With respect, I believe that the assumption of no large amounts of alcohol being consumed shortly before the incident can be relied on by the expert. P.C. Steele testified that near the beginning of the tire marks leading into the ditch he found an intact beer can that seemed fresh and still had some of its contents. He said he did not associate it with the crash but seized it anyway just in case he was wrong. When confronted with his notebook entry that the can was crushed, the officer agreed that his note was likely correct and that his memory in court was wrong on its condition. P.C. Spencer recalled seeing the can with a little beer in it. She took the can on speculation that it could be related to the incident. Both officers looked around the scene and found only one empty tallboy beer can. Both officers attended the car and looked into the front passenger area of the car with flashlights. The only thing they saw within reach of the driver was some deli meat, not any alcohol. Furthermore, given the dynamics of the situation being fast, out of control driving, it stretches one's credulity beyond the breaking point to imagine a driver in such circumstances having either the presence of mind or the time to toss out an empty beer can whilst wrestling for control of his car as it was going off the road.

[65] Even if the beer can was related to this incident, a single tallboy cannot be equated to a large amount of alcohol. There is no suggestion that a tallboy or two would have changed the expert's opinion regarding the Defendant's blood alcohol concentration at the relevant time.

[66] Furthermore, whatever signs of intoxication which were displayed by the Defendant in this case, it is clear that they never worsened. To the contrary, they appear to have been either stable or diminished once in custody. Had he swallowed copious amounts of alcohol within a quarter hour of driving, I have no doubt that there may well have been some visible signs of the intensifying influence of alcohol as it entered into his system. The scene of this collision can only be described as a rural one and I take judicial notice that there are no licensed establishments, beer or liquor stores in the immediate area which means alcohol was less accessible to any driver including the Defendant.

[67] For all of these reasons I find that the Crown has discharged its duty to prove on all of the evidence, that there was no consumption of large amounts of alcohol close to the time of the incident.

3.4.4: Conclusion

[68] I find that the prosecution may rely upon the expert opinions contained in the toxicology report with respect to both the calculation of blood alcohol concentration and impairment.

4.0: THE IMPAIRED DRIVING CHARGE

[69] With respect to the impaired driving charge, I agree with the defence that proof of impairment does not rest in an assessment of the eyewitness evidence taken as a whole. P.C. Steele's and P.C. Spencer's evidence gave ample reason to form grounds to arrest and make a breath demand, but when stacked against all the other witnesses' testimony their observations do not meet the standard of proof beyond a reasonable doubt. Ms. Besner said she had no notes or memory of any signs of intoxication which would have been an important characteristic to report. The qualified breath technician, P.C. McGuire said that the only basis for him to believe the Defendant was impaired to drive was the breath test results. Even sober people who may have had some alcohol to drink can drive dangerously and lose control without being drunk. The totality of the eyewitness testimony, while creating a probability that the Defendant was impaired, causes me to find that it would be unsafe to find him guilty of impaired driving on the body of the eyewitness evidence.

[70] Having discounted proof of impairment to drive beyond a reasonable doubt on the eyewitness evidence, I find that the evidence contained in the Toxicology Report does meet the burden of proof placed on the prosecution. The opinion is based on the unchallenged statement that anyone with a blood alcohol concentration in the range of 125 to 185 milligrams of alcohol per hundred millilitres of blood, as was the case here, would be impaired in their ability to operate a motor vehicle safely.

5.0: CONCLUSIONS

[71] After considering all of the evidence, the able submissions of counsel, and by applying the relevant legal principles to all the issues raised, my verdicts in this case are as follows:

Count #1: Impaired Driving – Guilty.

Count #2: Driving with Excess Blood Alcohol – Guilty.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice