Court File and Parties

Ontario Court of Justice

Date: April 3, 2018

Court File No.: Fort Frances Info 170390

Between:

Her Majesty the Queen

— and —

James Melford Asplund

Before: Justice Pieter Joubert

Heard on: January 18, 2018

Reasons for Judgment released on: April 3, 2018

Counsel:

• David MacKenzie, counsel for the Crown
• Kristofer Advent, counsel for the defendant James Asplund

JOUBERT J.:

A. INTRODUCTION

[1] At the outset of trial on January 10, 2018, defence and Crown counsel requested that the singular count of "Operation over 80" and an accompanying defence Charter Application be withdrawn. The trial of the accused, James Asplund, proceeded on the remaining count of "Impaired Operation" in which it is alleged that on May 3, 2017, Mr. Asplund operated his motor vehicle while impaired by alcohol. The following are my reasons for judgment.

B. CASE FOR THE CROWN

[2] The Crown called one civilian witness and one police witness in evidence.

1. Evidence of Daniel Young

[3] Daniel Young is a resident of Emo, Ontario, where he has lived since 2005.

[4] In his evidence in-chief, Mr. Young testified that on May 3, 2017, at approximately 5:00 PM, he was heading southbound on "Off Lake Road" toward Emo Township when he observed a white pickup truck ahead of him and also travelling southbound swerve. Off Lake Road is a gravel road with a posted speed of 80 km/h. Mr. Young estimated that the white pickup truck was driving approximately 85-90 km/h. Mr. Young was travelling more quickly and coming up from behind. No estimate as to the width of the road was provided at trial other than Mr. Young's testimony that Off Lake Road is "wider than most" gravel roads. He testified that the white pickup truck travelled approximately 75-80% of the width of the road.

[5] Mr. Young testified that he initially assumed that the vehicle was simply swerving to avoid potholes but then realized that there were no potholes. He travelled behind the white pickup truck for about 7-8 km during which time he observed a "few more" swerves. He called 911 as a result of his observations. Ultimately, Mr. Young observed the vehicle turn left onto Judson Street heading into the Judson subdivision, which is near the location where Off Lake Road meets Hwy 11. Mr. Young continued on Off Lake Road for what he estimated to be 20-30 seconds at which time he observed a police vehicle turn onto Off Lake Road from Hwy 11, and pass him heading northbound.

[6] In cross-examination, Mr. Young expressed reluctance to generalize about the conditions of the road surface of Off Lake Road. He agreed that the road was gravel and that, as such, there can at times be puddles, loose gravel, and possibly frost heaves. He also agreed that the events in question happened in the springtime. He agreed it had been raining earlier that day, that the gravel road was "a little mucky", and that he could recall a cloud of mist behind the oncoming vehicles as they passed him.

[7] In terms of driving behaviour, Mr. Young testified in cross-examination that he observed nothing abnormal about the speed of the white pickup truck, and that he was in fact slowly gaining on the vehicle. He testified that the tires of the vehicle did not leave the road surface, but on one occasion the vehicle came "pretty close" to going onto the opposite shoulder which he thought was "dangerous" given that the shoulder would be soft. He testified with some reluctance that he "supposed" that some people drive in the center lane of gravel roads such as Off Lake Road. He agreed that when oncoming vehicles approached, the white pickup truck would remain on the right hand side until after those vehicles had passed. Mr. Young testified that his assumption was, simply, that the vehicle might have been swerving to avoid potholes.

[8] In terms of the vehicle's turn onto Judson Street, Mr. Young agreed that the white pickup truck's left turn signal came on several seconds in advance of the turn and that the vehicle braked at the normal distance approaching the turn. He testified, "I did not note any unusual driving short of the swerving of that vehicle" and he agreed that he made no observations about the white pickup truck after it had turned off from Off Lake Road.

[9] Mr. Young agreed with defence counsel that the entire incident had been recorded on his vehicle's dashboard camera, the video having been provided by him to police. Defence played an excerpt of the video, covering the period of time just before the white pickup truck turned onto Judson Street and until Mr. Young's vehicle reached Hwy 11. Defence counsel, Mr. Advent, cross-examined Mr. Young on testimony earlier in the cross-examination concerning the location of a house and a row of pine trees. Mr. Young agreed with counsel that the house and row of pine trees were located on the left hand side of the road between Judson Street and a second street leading into the Judson Subdivision, whereas he had testified earlier that they were located on the right hand side of the road. Mr. Young testified that he could not, without guessing, say whether a vehicle coming from the opposite direction would be able to see past those trees and the house into the subdivision. Mr. Advent pointed out a puddle that could be seen in the video footage.

[10] Beyond that, Mr. Young's testimony was unshaken by the video footage in terms of the driving behaviour of the white pickup truck which Mr. Young agreed, in watching the video, was driving slightly left of center and which, upon approaching Judson Street, applied its left turn signal and brake lights appropriately and made a proper left hand turn. He testified that he did not see the vehicle again and could not say whose vehicle it was. He did not take a licence plate number but described the vehicle as a "white Chevy truck" with "z21" on its side.

2. Evidence of Sgt. Darren Hyatt

[11] Sgt. Darren Hyatt is a twenty-one year veteran of the OPP currently stationed with the Rainy River Detachment.

[12] In his evidence in-chief, Sgt. Hyatt testified that on May 3, 2017, shortly after 5:00 PM he was on administrative detail travelling west-bound on Highway 11 toward Rainy River when he overheard a traffic complaint from dispatch about a vehicle swerving on Off Lake Road. Sgt. Hyatt was "right there" at the turnoff from Highway 11 onto Off Lake Road, so he decided to take action.

[13] According to Sgt. Hyatt, the Judson Subdivision is only about 500 meters from the highway. It was a matter of seconds before the officer turned into the subdivision. He testified that as soon as he did he could see a white pickup truck heading southbound on Aspen Drive, which as I understand the evidence connects to Judson Street. Keeping his eyes trained on the vehicle throughout, the officer proceeded to a residence where the vehicle pulled into. The officer pulled his vehicle in behind the white pickup truck, which was now parked and had the ignition turned off. He saw no one exit the vehicle and the only one person inside was the driver, whom the officer observed to be seated in the driver's seat. His head was back and his eyes were closed.

[14] Sgt. Hyatt testified that he exited his vehicle and approached the white pickup truck. The tapped on the door. The driver opened his eyes and the officer opened the car door. Sgt. Hyatt testified that at that moment the driver appeared to be a bit disoriented. His head "bobbled" and his movements were "exaggerated and slow." The officer observed no open alcohol but detected the smell of alcohol emanating from the driver's breath. Sgt. Hyatt testified that he and the individual, who remained seated, had a brief conversation, in which Sgt. Hyatt observed bloodshot eyes, and at that point he told the driver that he was under arrest for impaired driving. The driver replied, "You're kidding" and the words spoken were slightly slurred.

[15] When exiting the vehicle, the driver was observed by Sgt. Hyatt to make a "slight stumble". The driver then produced his licence to Sgt. Hyatt, who placed him into the police cruiser. At that point officers arrived from the Emo Detachment and the driver, identified as the accused before this Court, was moved to another police vehicle. He was given his rights to counsel, read a breath demand, and that was the extent of Sgt. Hyatt's involvement. Sgt. Hyatt testified that the basis for the arrest was the smell of alcohol, slight slur, bloodshot eyes, and the fact that when Sgt. Hyatt arrived the driver's head was back and his gross motor skills seemed off.

[16] In cross-examination, Sgt. Hyatt testified that the subdivision is "pretty open" and that he was able to keep the vehicle, a white Chevy Silverado, in his sight from the time that he entered the survey to the time that he observed it stopping and he had pulled in behind. The vehicle was 200 meters distant when he turned into the subdivision and he estimated it was less than a minute before he reached the scene. Sgt. Hyatt agreed that in that short period he noticed nothing unusual about the driving of the vehicle, which was shut off when he arrived, and had been parked in a normal manner. He had a feeling the driver was asleep or tired because his eyes were initially closed. The driver appeared startled to see police standing there.

[17] Sgt. Hyatt agreed with defence counsel that his testimony in-chief concerning slow gross motor movements referred to the head and upper body movement of the driver upon being roused. He testified that there was a "spinning" of the head of the driver, and it appeared that the driver did not have the muscle control of the neck. It was like being sleepy or waking up and there was a "kind of blank look" on the driver's face. The officer testified that the accused, once outside of the vehicle, had no trouble walking. The officer noted a "bit of a stumble" but testified that the driveway surface was cobblestone. He testified that there was no observation made by him of difficulties by the driver in proceeding to the passenger side of the vehicle, opening up the passenger door, reaching in and pulling out his wallet, taking out his driver's licence, or getting into the police vehicle. He testified, "I didn't note anything after that," referring to the slight stumble.

[18] Sgt. Hyatt testified in cross-examination that the words that the driver slurred were the words, "You're kidding". He agreed with defence counsel that he did not know how the driver normally speaks and he also agreed that the slight slur he had observed could have been from the driver being "startled". Sgt. Hyatt testified that beyond this he observed no issues or concerns with speech. The driver appeared able to understand the conversation and answered questions appropriately. Regarding the bloodshot eyes, Sgt. Hyatt agreed with the defence that there were "numerous reasons" why the eyes of the driver might have been bloodshot such as allergies and testified that the arrest happened in the spring time.

[19] Sgt. Hyatt was asked about the condition of the road surface of Off Lake Road. He testified that he had travelled that road "many, many times" and that it "can be quite rough" at different times of the year, especially after it has been raining. He believed that it had been raining earlier in the day. He acknowledged having reviewed the dashboard video given to police by Mr. Young, and agreed with the defence suggestion that the road surface as reflected in that video was wet and had potholes on the road.

C. CASE FOR THE DEFENCE

[20] The defence on consent of the parties tendered into evidence a video of Mr. Asplund in the cells at the OPP Emo Detachment.

1. Cell Video

[21] The authenticity and in fact the admissibility of the cell video is not in issue. The video does not have any audio feed. It was played at the trial and was made an exhibit.

[22] I had the opportunity to make findings of fact concerning the observed behaviour of the accused. From the date stamp, Mr. Asplund was placed into cells at 6:27 PM and he remained there until 6:35 PM. In that time he is observed to speak by telephone to another party identified by Mr. Advent to be Duty Counsel.

[23] I make the following findings. I observe the accused throughout the period referred to above to be standing, walking, picking up the telephone receiver, talking on the telephone, hanging up the telephone, and walking back and leaving the room. There is no observable impairment of gross or fine motor functioning. There are what appear to be gestures of frustration while the accused is speaking on the telephone, but there is no behaviour observed that appears inappropriate. I did not observe any stumbling, swaying, falling, or other indicia of impairment either within the cells or while the accused entered or left.

D. SUBMISSIONS OF THE PARTIES

1. Submissions of the Defence

[24] Mr. Advent seeks an acquittal of Mr. Asplund on what might best be viewed as being three bases.

[25] From an evidentiary standpoint, Mr. Advent submits that the evidence from the video in cells should be preferred over the viva voce evidence. He submits that the examination of Mr. Young revealed a witness whose memory was insufficiently reliable and whose answers were at times evasive. Mr. Advent submits that the testimony of Mr. Young of the swerving is unreliable and cannot assist this Court in deciding whether or not the driver's operation of the motor vehicle was impaired. Respecting the evidence of Sgt. Hyatt, whom Mr. Advent concedes to be credible and reliable, he submits that the officer nonetheless at times had difficulties in his recollection, resulting in what Mr. Advent describes as "slight reliability issues". He submits that the picture of the accused changes upon viewing the video, at which time the indicia of impairment as reported by the officer are no longer present. The video, he submits, is the best and clearest evidence and as a result it should be preferred. As that evidence does not show indicia of impairment, there should be an acquittal.

[26] From a sufficiency standpoint, Mr. Advent argues that the evidence of Sgt. Hyatt provides "very minimal indicia" of impairment beyond the smell of alcohol. He submits that the evidence is consistent with evidence of someone who is tired from working for a long time and is, therefore, resting or sleeping in the vehicle. Mr. Advent submits that Sgt. Hyatt conceded that some of the indicia, for example the observations of bloodshot eyes, could have been caused by something other than alcohol consumption. Relying on the decision of the Manitoba Queen's Bench in R. v. Aaron Backe-Peters, 2012 MBQB 330, Mr. Advent submits that it would be dangerous for this Court to find beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired by alcohol.

[27] Third, Mr. Advent submits that there is some doubt that the vehicle that turned into the subdivision was the same vehicle that the officer subsequently observed driving in the subdivision given the gap in time. Beyond that, he takes the position that the evidence of Mr. Young is of little to no probative value as the witness' testimony was in his submission neither credible nor reliable.

2. Submissions of the Crown

[28] The Crown submits that on the totality of the evidence the Crown's case has been made out.

[29] In responding to the submissions of Mr. Advent concerning the cell video evidence, Mr. MacKenzie submits that it is questionable what evidentiary value the video has, given that the video was made almost an hour and a half after the alleged incident. Mr. MacKenzie submits that, presumably, the level of alcohol in Mr. Asplund's blood would have diminished significantly between 5:07 PM and 6:29 PM. In addition, Mr. McKenzie submits that the decision in R. v. Aaron Back-Peters, supra, a Manitoba Queen's Bench case, is not binding upon this Court. He submits that what is binding upon this Court is the decision of the Court of Appeal for Ontario in R. v. Stellato, which remains the law in this province, and which holds that if there is any degree of impairment, slight to great, the offence of impaired driving is made out. Mr. MacKenzie submits that in the present case the uncontradicted evidence is that Mr. Asplund, who had obvious care and control of the vehicle, showed signs of impairment of some degree. As such, a conviction should register.

[30] I note that in response Mr. Advent clarified - and I understand the parties are ad idem on this point - that the issue is not impairment generally speaking but impairment to the ability to operate a motor vehicle.

E. FACTUAL FINDINGS

[31] I have already noted my factual findings in respect of the observations of Mr. Asplund while in cells at the OPP Detachment in Emo.

1. Findings Respecting Daniel Young

[32] As the Court of Appeal for Ontario has observed in R. v. H.P.S., 2012 ONCA 117, credibility refers to a witness' sincerity and believability while reliability refers to the accuracy of a witness's evidence.

[33] In that context, I do find by and large that the witness Daniel Young was credible. In direct examination, Mr. Young testified in a straight-forward manner. He had no interest in the outcome, no axe to grind. I found him to be sincere in his evidence, and I did not find this to change in cross-examination. At times in the course of the cross-examination, Mr. Young expressed reluctance to answer questions posed by defence counsel. However, as cross-examination continued, it became clear that what the witness was reluctant about was to generalize or guess. Mr. Young was reluctant to generalize about the conditions of Off Lake Road, as an example. He was also unwilling to say what a driver, heading in the opposite direction, might be able to see or not see if looking into the subdivision, given the presence of the trees and house. Rather than undermining credibility, the reluctance to agree lent credibility to the witness' testimony.

[34] I would take this opportunity to note one difficulty that has arisen in this case from a standpoint of believability because of a discrepancy in Mr. Young's evidence. In his evidence in-chief, Mr. Young testified he initially believed the driver was swerving to avoid potholes but realized this was not the case and he therefore dialed 911. In cross-examination, the witness was repeatedly questioned about the driving behaviour and he repeatedly testified that he believed he assumed the vehicle was swerving to avoid potholes. That was, in the end, the only reason proffered by the witness. I do not know what to make of this, but I do not see this discrepancy as undermining the sincerity and believability of the witness, generally. That being said, I do make note of this apparent contradiction.

[35] As to the reliability of Mr. Young's evidence, I do find that the testimony on some of the crucial details appeared to be somewhat vague, such as the width of Off Lake Road and more importantly the number of times the white pickup truck was observed to swerve. As well, the cross-examination revealed that Mr. Young had misremembered on which side of the road a bank of trees and a house were located. On the other hand, the answers given by Mr. Young appeared largely internally consistent in his recollection of the crucial events, including the swerving behaviour of the white pickup truck, and including driving behaviour that did not concern Mr. Young such as the vehicle's speed, the proper application of brakes and a left turn signal and the execution of a proper left-hand turn. I note that from a standpoint of external validity, the testimony of the witness is corroborated by that of Sgt. Hyatt on a number of essential details including the colour and make of the vehicle – a white Chevy pickup truck – and the timing of the police' arrival in the vicinity of the subdivision.

[36] I note that while I will certainly not draw an adverse inference from the Crown's decision to not tender into evidence the dashboard camera footage that Mr. Young had provided to police, this Court is left in a position where the witness' evidence, on the one hand, is largely clear and consistent and, on the other hand, is not as clear as it could otherwise have been in terms of some of the more salient details, such as the number of swerves and the nature of that behaviour as regards the road surface.

[37] I therefore accept the evidence of Mr. Young to be credible and reliable and accept that facts as tendered through that witness, save and except for the caveats noted above. I accept as an example his testimony about the circumstances that led him to be following behind the white pickup truck, and I accept his evidence that this vehicle was observed by Mr. Young to be driving slightly left of center. I accept that, in the circumstances, Mr. Young was sufficiently concerned about the driving behaviour, to telephone 911. I accept his evidence that the vehicle swerved at least a few times, although the number of times that this occurred remains unclear. And, I accept his evidence that the swerving behaviour on one occasion resulted in the vehicle, which I understand to have been travelling slightly over center according to his evidence, to travel to approximately 75% of the way across the road surface, in other words one quarter of a width of the road. I accept his evidence about the weather conditions on the date in question.

2. Findings Respecting Sgt. Darren Hyatt

[38] I find that the witness, Sgt. Darren Hyatt, was a credible witness, whose evidence is reliable. In fact, credibility it may be noted was conceded by the defence as might be expected given that the officer testified in a forthright manner, and was quite open in his answers. I do agree with defence that memory of the officer was, on occasion, not 100% clear. As an example, the officer could not recall for certain whether the residence that the driver parked at faced in a southern or south-easterly direction. However, I also agree with the Crown that the evidence of Sgt. Hyatt was unshaken in his observations of the accused and his driving behaviour. Having made these credibility and reliability findings, I accept the evidence of Sgt. Hyatt as set out earlier in this decision.

F. LAW

[39] The law as it applies to this case may be stated as follows.

1. Impaired Driving

[40] Section 253(1)(a) of the Criminal Code provides as follows:

S. 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; ...

2. Operation of Motor Vehicle

[41] In the present case, Count 1 as drafted requires that the Crown prove Mr. Asplund was operating his vehicle while his ability to do so was impaired by alcohol. Each essential element must be proven by the Crown beyond a reasonable doubt: see R. v. Andrews, 1996 ABCA 23 at para. 29.

[42] I do not feel it necessary to discuss at length the requirement that the Crown prove that Mr. Asplund was operating his motor vehicle at the material time. The clear and uncontradicted evidence of Sgt. Hyatt is that he observed the subject vehicle, a white Chevy pickup truck, proceed to a residence and park there. The officer at no time lost sight of that vehicle and he did not observe anyone to exit it. The person located behind the wheel of that vehicle was subsequently identified as the accused, James Asplund. The Crown has established, beyond a reasonable doubt, operation of the motor vehicle by Mr. Asplund.

[43] I would also note here in passing that I do not agree that the brief gap in time between the observations of Mr. Young and those of Sgt. Hyatt raise a doubt as to whether the vehicle observed by the two witnesses was one and the same vehicle. It is clear that the timeframe was fleeting. The officer was, as he testified, "right there". There was no other vehicle observed by the officer to be in operation in the subdivision and the vehicle matched the description given. I accept that the vehicle observed by the two Crown witnesses was one and the same in the facts of this case.

3. Impairment by Alcohol

[44] The real issue is whether the Crown has proven, beyond a reasonable doubt, whether the ability of the accused to operate the motor vehicle in question was impaired by alcohol at the material time.

[45] I agree with the Crown that the governing test in Ontario concerning the degree or level of impairment required was set out by the Court of Appeal for Ontario in R. v. Stellato, which provides that no requirement is placed upon the Crown to prove any specific level of impairment. The Court rejected the notion that there must be a "marked departure" from the norm or standard of sobriety. Any degree of impairment in the ability to drive, however small or great, if caused by alcohol or drug, and proven beyond a reasonable doubt, is sufficient.

[46] That being said, and as noted by the defence, the impairment to be proven is impairment to the ability to drive. The impairment must also be caused by alcohol or drugs. In this sense, it is inappropriate to simply assume that, just because a person's functional ability is affected in one or more respects by consumption of alcohol or a drug, his or her ability to drive is automatically impaired as well. See R. v. Andrews, 1996 ABCA 23 at para. 29; as applied in R. v. Bonang, [2016] N.S.J. No. 491 at paras. 156-7; and recently in Ontario in R. v. Godfrey, [2017] O.J. No. 6257 at para. 29.

[47] In terms of what evidence is to be considered and how it should be evaluated, as noted in R. v. Andrews at para. 29:

[P]roof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired.

[48] When evaluating that evidence, the Court must consider the totality of all of the evidence relating both to the conduct and the condition of the accused, and ask if the whole of the evidence proves the impairment beyond a reasonable doubt. See the digest of cases in R. v. Malton, [2010] O.J. No. 3106 at para. 51. The Court must consider the evidence as a whole. It cannot simply weigh each indicia separately, as the totality of the evidence may well overcome the equivocal nature of the constituent parts: see R. v. Bogdon, [2014] O.J. No. 3699 at para. 27. That being said, the Court must "be careful to consider not only the observations alleged to be consistent with impairment, but also any evidence that might tend to show the accused is not impaired at the time": Joseph P. Kenkel, Impaired Driving in Canada [4th Ed.] (Toronto: LexisNexis, 2015) at p. 20.

[49] One final comment. It is important to distinguish between the level of impairment and the manner of proof. As is observed in R. v. Andrews, supra, the original jurisprudential source for the phrase "marked departure" referred to in this decision at para. 45 was the decision of Sissons C.J.D.C. in R. v. McKenzie, (1955), 111 C.C.C. 317, 20 C.R. 412. However, as the Court in R. v. Andrews observes the decision in R. v. McKenzie does not stand for the proposition that there must be a marked degree of impairment in the ability to drive. As the Court notes at para. 21 the decision in R. v. McKenzie, in actuality:

… speaks to the kind of evidence from which an inference of impairment of the ability to operate a motor vehicle may be drawn. Where one is relying on circumstances, if the combination of the conduct relied upon constitutes a sufficient departure from the conduct of unimpaired, or normal, individuals it is safe to infer from that conduct an existence of impairment of the person's ability to drive. [R. v. McKenzie] sets out, not a rule of law, but a helpful guide to use in assessing evidence.

[50] Nor, as is noted in R. v. Andrews, supra at paras. 24-26, does the Court in R. v. Stellato overrule R. v. McKenzie. The two cases are compatible. They speak to different things: R. v. Stellato speaks to the degree of impairment of the ability to drive necessary to sustain a conviction; R. v. McKenzie speaks to the manner of proof of that impairment. The distinction is important when it comes to evaluating the sort of evidence that Sissons C.J.D.C. was confronted with in R. v. McKenzie which is described by the Court in R. v. Andrews in the following way at para. 23:

In most cases, if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol. Put another way, as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol.

[51] I note this because, in this case, the arguments being advanced by Crown and defence appear to me to be either addressing different things. The Crown's focus is placed on the level of impairment and the test to be met in law. The Defence submissions appear focused on the question of whether, on the evidence before the Court in this particular case, it is safe for this Court to infer from that conduct the impairment of Mr. Asplund's ability to drive, beyond a reasonable doubt.

[52] The argument advanced by Mr. Advent appears to be precisely the point that is made in R. v. Aaron Backe-Peters, supra. It is true that the decision refers to R. v. Stellato, supra, only in discussing the burden of proof to be met (at para. 33). The decision does not make reference to the rejection by the Court of the requirement in law of a "marked departure" from the norm or standard of sobriety, nor does it make reference to the discussion in R. v. Andrews, supra, which explains how R. v. Stellato and R. v. McKenzie are compatible. It simply refers to R. v. McKenzie, in the assessment of the evidence in the case at hand (at para. 34).

[53] Notably, the facts before the Court in R. v. Aaron Backe-Peters involve a situation where the conduct of the accused was a slight departure from normal conduct. The Court cites the following passage from the decision in R. v. Wyryha (2010), 2010 MBPC 17, 252 Man. R. (2d) 191, at para. 48:

However, the fact that a person's functional ability is affected in some respects by the consumption of alcohol does not mean that the person's ability to drive is also necessary impaired. When the evidence of impairment consists of observations of the conduct of an individual, if that conduct is a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that the ability to operate a motor vehicle is impaired: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C. A.) at para. 23; leave to appeal to the S.C.C. Refused (1996), [1996] S.C.C.A. No. 115, 106 C.C.C. (3d) vi.

I note that the decision in R. v. Wyryha, supra, cites R. v. Andrews, supra.

[54] I fully appreciate the Crown's submissions on R. v. Stellato, but respectfully, I do not agree that the decision in R. v. Aaron Backe-Peters, is incompatible with the decision in R. v. Stellato. I view the decision to simply provide an instance in which, on the evidence before the Court, the conduct of the accused presented a slight departure from normal conduct. As a matter not of law but of evidence the Court, applying R. v. McKenzie, supra, found that it was unable to safely infer from that conduct the existence of impairment of the ability of the accused to drive. If I am wrong in my interpretation of the decision in R. v. Aaron Backe-Peters, the fact remains the decisions in R. v. McKenzie and R. v. Stellato, supra, are not incompatible, for the reasons expressed in R. v. Andrews. As will be discussed below this is of note in the present case.

G. Application of the Law to the Facts

[55] In applying the law to the facts, I propose to identify the indicia of impairment in the present case as well as any evidence that might tend to indicate a lack of impairment, and then consider whether that evidence, viewed as a whole, proves the offence charged beyond a reasonable doubt.

[56] I note at the outset that the cell video evidence, which permits this Court to make observations of the accused, is in this case a bit of a red herring in that it permits observation of the condition of the accused one and a half hours after the incident. I agree with the Crown's submissions and I decline, in these circumstances, to give much weight to that evidence.

1. Indicia of Impairment

[57] The evidence that is consistent with impairment is as follows.

[58] From a standpoint of driving behaviour, Daniel Young observed the subject vehicle over 7-8 km of road driving slightly left of center. In that time, the vehicle was observed to "swerve" a few times. The precise number is not specified. It was enough of a concern for Mr. Young to call 911. One of the swerves, the first one, was to a point where the vehicle was about 75% of the way to the other side of the road, which I take to mean that the vehicle moved at least 25% of the way across the road, given the testimony of the witness that the vehicle was observed to be driving slightly left of center.

[59] From a standpoint of observations of the accused, Sgt. Hyatt observed the accused with his eyes closed, resting or sleeping. In the moment immediately after Sgt. Hyatt tapped on the window, he observed the accused, to not be in possession of his gross motor control. His head and upper body were "off" in that there was a spinning of the head of the driver. The officer observed red glossy eyes and a smell of alcohol. The officer observed, in response to the phrase, "you're under arrest", that the accused in stating "you're kidding" appeared to have slurred those words. And, when the individual was asked to step out of the vehicle, he made a slight stumble.

2. Evidence Not Consistent with Impairment

[60] The evidence that is not consistent with impairment by alcohol is as follows.

[61] From a standpoint of driving behaviour, Daniel Young was clear in his testimony that he observed no other driving behaviour of concern over the 7-8 km that he drove behind the white pickup truck, beyond the few swerves. The vehicle was not over center when other vehicles passed. It slowed down, signaled and turned left into the subdivision in an appropriate manner. Mr. Young was clear in cross-examination, although he testified differently in direct examination, that he assumed the vehicle to be swerving to avoid potholes. He repeated this in cross-examination. He and Sgt. Hyatt each testified that the road surface in question is gravel, and Sgt. Hyatt for his part testified the road has plenty of potholes and can be quite rough. Both witnesses testified that the events in question happened on a day in the spring where it had been raining and the roads were "a little mucky". Mr. Young testified, albeit reluctantly, that "some" people drive in the center lane on roads such as this one. Sgt. Hyatt testified he did not observe any issues with the driving behaviour of the white vehicle, and that the vehicle was parked appropriately in the driveway.

[62] From a standpoint of observations of the accused, Sgt. Hyatt's evidence is that, except for the initial reaction of the accused, upon being what I take to be jarred awake by the rapping on his vehicle window by the officer, there were no observations of any gross motor impairment. Except for the initial verbal response, "you're kidding" there is no evidence of slurring of words. The officer testified that the accused was observed to converse with him, and to consider what was being asked, without any issue whatsoever. In terms of the stumble, Sgt. Hyatt testified that the driveway was cobblestone and it may have been caused by that. Apart from the slight stumble, the accused was observed to walk completely without any difficulty. In terms of fine motor coordination the officer observed the accused retrieve his wallet and provide his licence without issue.

3. Application

[63] I am very mindful that I must consider all of the indicia of impairment as a whole, and taking into consideration all of the evidence decide whether there is a reasonable doubt.

[64] In doing so in the case before me, I simply cannot find that the evidence leaves no reasonable doubt whether the ability of Mr. Asplund to operate the white pickup truck was impaired by alcohol on the date in question. This is not to say that I doubt Mr. Asplund had consumed some alcohol at an earlier point in time. The evidence is clear in that regard. Nor is this to say that I doubt Mr. Asplund swerved a number of times while he was driving. But, as noted in the decision of R. v. Gray, [2005] O.J. No. 1010, the presence of a smell of alcohol does not itself prove impairment and in this case we simply have no evidence of how much alcohol was consumed and when. Nor is evidence of swerving, where there are potholes, by itself sufficient. See, as an example R. v. Rulli, [1998] O.J. No. 717.

[65] The balance of the evidence, in my view, can be reasonably explained by tiredness and by the shock or surprise of being awoken by a police officer in the context of an arrest. In this regard, it is noteworthy that there are no other indicia of impairment from the observations of driving. In fact, the evidence of both Mr. Young and Sgt. Hyatt is in accord that the accused otherwise drove the vehicle in a manner that did not appear impaired by alcohol. It is similarly noteworthy that every sign of motor impairment observed by Sgt. Hyatt, be it speech, gross motor movement, or fine motor movement, vanished within moments of Mr. Asplund having opened his eyes and stepped out of the vehicle. The evidence of Sgt. Hyatt is clear. After the initial stumble, which may have been due to the cobblestone, Mr. Asplund exhibited absolutely no signs of impairment. This extended to his ability to not only walk and talk but also comprehend the officer, receive direction, and comply with that direction.

[66] In my view this is precisely the sort of case contemplated in R. v. McKenzie and more recently in Aaron Backe-Peters. It is a case in which the evidence of impairment is slight, and in which it would be dangerous for this Court to convict. This case is in this regard very different on the facts from other cases involving swerving in which the driving behaviour, along with the other indicia, proves impairment by alcohol beyond a reasonable doubt. For a recent example, see R. v. Lopez, [2017] O.J. No. 1709, and this case may be distinguished on the facts. In the circumstances, I am prepared to accept that there is a reason to doubt whether the accused was, in fact, impaired by alcohol in his ability to operate the motor vehicle.

[67] I therefore acquit the accused.

Released: April 3, 2018

Signed: Justice Joubert