Court File and Parties

Ontario Court of Justice

Date: 2018-04-06

Court File No.: Newmarket 16-00129

Between:

Her Majesty the Queen

— and —

Tiffany Marie Shibley

Judgment

Evidence heard: April 5, 6, 2018

Delivered: April 6, 2018

Counsel:

• Mr. Philip Hsiung — counsel for the Crown
• Ms. Tiffany Shibley — on her own behalf

KENKEL J.:

Introduction

[1] Ms. Shibley was found by another driver stopped in a live lane of traffic. Her head was slumped forward towards the steering wheel and she was not conscious. With some effort the other driver was able to wake her. She appeared to be confused. She drove away at a very slow rate of speed. The other driver called 911.

[2] Ms. Shibley stopped her vehicle a short distance away and then the vehicle went into reverse and rolled towards the driver following as he spoke to the 911 operator. It appeared to him that she meant to put it in park but ended up in reverse. He honked so that she wouldn't hit him and she stopped. When EMS arrived the accused tried to drive away but the ambulance blocked her path. Ms. Shibley was investigated by the police and is charged with operating a vehicle while impaired by alcohol and refusing to provide a breath sample contrary to a lawful demand.

[3] The evidence as a whole shows that the accused was significantly impaired by alcohol consumption at the time of driving. The central issue for decision in this case is whether the Crown has proved the allegation of failure to comply with a demand for a breath sample where the accused's high degree of intoxication continued to the time of testing.

The Evidence

[4] Constable Hay first saw Ms. Shibley standing by her car talking to EMS paramedics. He observed that she was slurring her words and mumbling. He detected the odour of alcohol coming from her breath. Her eyes were glossy and she struggled to keep them open. She was swaying from side to side.

[5] Based on those observations and information he'd received from the independent witness, PC Hay formed the opinion that she'd operated a vehicle while her ability to do so was impaired by alcohol consumption. He verbally placed her under arrest but then let her go with the EMS paramedics. He did not read her right to counsel advice as to him her health was more important and there was no privacy. When she was cleared by EMS he provided full right to counsel advice along with the primary and secondary cautions.

[6] The cruiser video records the accused's slurred and very confused responses to the advice and cautions read. For example, it's difficult to make out the accused's response to the secondary caution given slurring and mumbling, but the audio records phrases such as, "it's like the drug store's jurisdiction … the place where they put their stuff and my friend … the toilet paper at the time and it's really expensive…". Ms. Shibley was unaware of her location. She thought she was in a different city in the south end of York Region. She didn't know what day it was even though it was Christmas day. I find the accused's state of confusion was so pronounced, she did not understand any of the advice given despite the officer's efforts.

[7] At the station the accused was given a limited pat-down search by a female officer. Her speech was still slurred, but she was able to focus enough to provide answers to questions about her name, date of birth, address, height etc. She was given right to counsel advice again and requested to speak with duty counsel. She wanted to make a further specific call but that was to a friend and wasn't to speak to a lawyer. She spoke to duty counsel prior to being transferred to the breath room. In the booking area it was difficult to determine her level of balance as she was supported at all times by one or more officers. Any issue with balance during the pat down search might reasonably result from that process.

[8] Ms. Shibley was able to walk into the breath room without assistance. While it took some time, she was able to remove the approved instrument mouthpiece from the plastic wrapper. After test instructions were explained several times she said she understood. On her first attempt she held the mouthpiece to her mouth as if to blow, but she provided no air at all and there was no tone from the instrument. On numerous subsequent attempts she provided short bursts of air lasting a fraction of a second to a second but no more. She was repeatedly cautioned about the need for a longer, continuous sample. After about 5 minutes and numerous explanations the accused did not provide anything longer than bursts of air which registered a tone but lasted less than a second. She was cautioned about refusal but simply repeated the same short blows.

[9] There's evidence that she understood the process by her utterances in which she comments on the test and argues with the officer about the reason for her failure to provide a sample. At that time the officer described her as sleepy and "perhaps a little bit confused". He said she talked about unrelated things such as a marker than ran out of ink in her purse. She "rambled on" about that. She also can be heard on the video saying something about "face cloths" and the officer says "What face cloths are you talking about? There's no face cloths here." The accused's orientation had improved somewhat since the roadside, but she remained confused and her speech was still slurred.

[10] Ms. Shibley testified that she went to her daughter's that evening for Christmas dinner. She slept all day and arrived late as a result. After about three hours there she left to take her dog home. She never stopped in the roadway as described by the witness. She did not drink any alcohol that night. She tried her best to provide a sample as she was not impaired, but her mouth was dry and she had bronchitis so she was physically unable to provide a proper sample.

Potential Charter Issues

[11] There was no Charter application but I've considered whether the delay in providing right to counsel advice breached s.10(a). She certainly didn't receive the required advice upon arrest but that circumstance was reasonably explained by the need for medical attention. No officer took any investigative step until she was released by the paramedics. I find the delay does not breach s.10(a) in that context, but if that's in error it would be a technical breach only without any actual impact on the rights protected by s.10. In any event, it's plain the accused would not have understood right to counsel advice at the time of arrest as even later at the roadside her mental confusion precluded comprehension. Later at the station where she had somewhat better focus she expressed a wish to speak to duty counsel and she did receive advice from that lawyer. Nothing happened to her detriment in the interim.

[12] The arresting officer forgot to make an approved instrument demand at the roadside but relayed his grounds to the breath technician who made a timely demand as required by s.254(3). This situation was considered in the case of R v Guenter 2016 ONCA 572, leave refused [2016] SCCA No 433. The Court of Appeal held that the Crown need only prove one lawful demand. The breath technician's demand met the "as soon as practicable" requirement of s.254(3) even though it was not the earliest possible demand the police could have made. The same finding applies here with the further observation that anything read at the roadside was not understood due to the accused's mental confusion and disorientation. There is no evidence of a Charter breach.

Impaired Operation

[13] In coming to a decision in this case I've considered all of the evidence heard to determine whether the Crown has proved either count alleged beyond a reasonable doubt. If there is any evidence which reasonably could leave a doubt on either charge, the accused is entitled to an acquittal.

[14] Ms. Shibley had little memory of the details of the events that evening. Her evidence that she did not consume alcohol is contradicted by the credible evidence of the officers who smelled the odour of alcohol and by the further indicia they observed related to alcohol consumption (glassy eyes, fatigue despite lengthy sleep that day, problems with balance, slurred speech, confusion). Given her condition at the time, Ms. Shibley does not remember being stopped unconscious in the roadway or much about the events thereafter. I find her recollection is unreliable such that I can place no weight upon it unless confirmed by credible external evidence.

[15] The officers were sober and acting in a professional capacity. Their evidence is consistent with the in-car video and the station video evidence. Their evidence is also consistent with the civilian witness who was sober and whose recollection was assisted by contemporaneous notes made at the time. I find the evidence of the officers and the independent witness to be credible and reliable.

[16] I find the credible evidence as a whole proves that the accused's ability to operate her vehicle was impaired by the effects of alcohol consumption as alleged. At the roadside close to the time of driving she displayed an advanced degree of impairment or intoxication including pronounced slurring of her speech, significant mental confusion, problems with balance and fatigue to the point where she lost consciousness while at the wheel in a live lane of traffic. That loss of consciousness cannot reasonably be attributed to fatigue where she spent much of that day sleeping to the point where she was late for her daughter's dinner. The difficulty in waking her up despite the other driver's efforts and the presence of a large, barking dog is also inconsistent with simple fatigue. Fatigue to the point of loss of consciousness is a recognized effect of alcohol consumption and that inference is consistent with the remainder of the evidence. The whole of the evidence shows a high degree of physical and mental impairment at the time when the accused was found in the roadway and then continued on to drive. The combined circumstances show the impairment can be explained only by her consumption of alcohol. I can find no evidence that reasonably could leave a doubt in that regard.

Failure to Comply with the Breath Test Demand

[17] In cases of significant intoxication, some courts have found that the Crown has not proved the prohibited act of refuse where the accused is physically incapable of providing a sample, or that they haven't proved the mental element in circumstances where the natural inference that the accused intended the result may not apply. See: R v Dojcinovic 2014 ONCJ 112, R v Abdool [2003] OJ No 4107 (CJ) at para 27, R v Masters [1993] YJ No 68 (Terr Ct), R v Henderson [1976] OJ No 2468 (Co Ct).

[18] In this case I find that the natural inference that would normally arise from her failure to provide an adequate sample as instructed does not apply given the extent of the accused's intoxication and her ongoing mental confusion at the station. While the marked disorientation shown at the roadside had resolved somewhat by the time they reached the booking desk, and she was able to give some responsive information, the officer-in-charge noted that she had to be asked or told things several times and that she continued to demonstrate confusion including reaching for a coffee or reaching for her purse when nothing was there. The arresting officer's evidence explains certain of the accused's actions shown on the video.

[19] Later in the breath room Ms. Shibley was able to walk into the room without assistance. The conversation showed she had some understanding of the process. Even at that time though the breath technician found her confused. She seemed to follow parts of their conversation, but at other times she talked about completely unrelated things showing significant ongoing mental disorientation. Her speech was better than at the time of arrest but still noticeably slurred as shown in the video.

[20] I find that this is the situation described in R v Slater 2016 ONSC 2161 where the evidence in a particular case may "suggest an absence of intent or at least raise a reasonable doubt about it". Given the extent of the accused's intoxication and her resulting mental confusion and disorientation I find a reasonable doubt remains with respect to the refusal on the whole of the evidence without resort to consideration of whether such intoxication might also operate as a "reasonable excuse" for a failure to provide a suitable sample contrary to s.254(5).

Conclusion

[21] Ms. Shibley is found guilty of the charge of impaired driving but not guilty with respect to the charge of refusing to provide a breath sample pursuant to a lawful demand.

Delivered: April 6, 2018

Justice Joseph F. Kenkel