Court File and Parties

Ontario Court of Justice

Date: April 24, 2018

Court File No.: Barrie 17-2222

Between:

Her Majesty the Queen

— and —

Curtis Bailey

Before: Justice C.M. Harpur

Heard on: April 6 and 13, 2018

Reasons for Judgment released on: April 24, 2018

Counsel

Jenna Dafoe — counsel for the Crown

Jonathan M. Rosenthal — counsel for the accused Curtis Bailey

HARPUR J.:

I. Introduction

[1] Mr. Bailey is charged with alcohol-impaired care or control of his motor vehicle and care or control with a legally excessive blood alcohol concentration on April 16, 2017. His trial on these charges proceeded on April 6 and 13, 2018. In advance of trial Mr. Bailey applied for an exclusion from the record of evidence of his excessive blood alcohol concentration on the basis of violations of his constitutional rights to be secure against unreasonable search and seizure, not to be arbitrarily detained, and to retain and instruct counsel without delay and to be so informed by the police. In the event, Mr. Bailey restricted his Charter application to the last of these alleged infringements.

[2] The evidence on the Charter voir dire and the trial was blended.

[3] Ms. Dafoe for the Crown called as witnesses Inspector Laurie Taylor-Bolton who, on returning home in the early morning of April 16 from her investigation of another matter, responded to a police dispatch call concerning a possibly-impaired motorist on Highway 400 close to where she was travelling, and P.C. Gregory Crowe, the arresting officer and breath technician. Mr. Rosenthal for Mr. Bailey called no evidence in either the voir dire or the trial.

II. Issues

[4] Two issues for determination emerged from counsels' submissions: (i) has Mr. Bailey established that the police failed to honour his Charter s. 10(b) right by failing to provide him with a Prosper warning and, if so, should the evidence of his excessive blood alcohol concentration nonetheless be admitted into evidence; and (ii) has the Crown established some degree of impairment by alcohol of Mr. Bailey's ability to operate his motor vehicle.

III. The Evidence

A. Inspector Taylor-Bolton

[5] Inspector Taylor-Bolton has been an OPP officer for twenty-two years, an Inspector for the last one and one-half. At 3:25 a.m. on April 16, 2017 she was returning home to Barrie on Highway 400 from an incident investigation on Highway 404. She heard a dispatch radio call based on a civilian 911 complaint describing the driving of a vehicle northbound on Highway 400 as "weaving" and "almost hitting the guardrail". She noted the make and licence number reported in the dispatch transmission and proceeded to locate the vehicle in question. She came upon it in the innermost lane of three ("Lane 3") on Highway 400 north of Innisfil Beach Road and south of Mapleview Drive travelling at approximately one hundred and ten kilometers per hour. She placed her cruiser immediately behind the vehicle which was being operated by Mr. Bailey. She observed Mr. Bailey's vehicle weaving back and forth as it progressed, never proceeding in a straight line during her approximate two kilometer observation. The weaving was both within and outside of Lane 3. As to weaving beyond the boundaries of Lane 3, Mr. Bailey would stray onto the highway shoulder, as well as Lane 2, and then return to Lane 3. When within Lane 3 he continually moved from side to side. It appeared to Inspector Taylor-Bolton that Mr. Bailey was incapable of maintaining a straight-line progression. Mr. Bailey did maintain his one hundred and ten kilometer per hour speed.

[6] Eventually during this two kilometer stretch, Mr. Bailey and Inspector Taylor-Bolton began to approach the section of Highway 400 under construction at the new bridge north of McKay Road. Inspector Taylor-Bolton was aware that Highway 400 north has no shoulder at that point. Mr. Bailey was continuing his onto-the-shoulder weaving at the time and his vehicle was approximately one-half meter onto the highway shoulder. Inspector Taylor-Bolton perceived that he would strike the bridge if he maintained that position. She braked to distance herself from Mr. Bailey's vehicle to avoid the accident she thought was about to occur. At the last instant, Mr. Bailey swerved from the shoulder into Lane 3 and avoided a collision with the bridge. Inspector Taylor-Bolton felt the avoidance was so narrow that Mr. Bailey's vehicle's passenger side mirror was likely to have struck the bridge.

[7] Mr. Bailey's driving had, by this time, so alarmed Inspector Taylor-Bolton that she had decided to try to halt Mr. Bailey without assistance from P.C. Crowe, whom she knew to be coming to join her in pursuit. She reported on air Mr. Bailey's weaving progression and his near miss of the bridge. Inspector Taylor-Bolton concluded that Mr. Bailey was impaired in his ability to operate his vehicle and activated her cruiser's emergency lights.

[8] Mr. Bailey did not immediately seem to be aware of the cruiser and continued to advance, weaving. Eventually, however, once he seemed to see the cruiser, he immediately pulled his vehicle to the shoulder and stopped it.

[9] Inspector Taylor-Bolton came to Mr. Bailey's driver's window. He was the sole occupant of his vehicle. She looked in. Mr. Bailey appeared "not to be with it". Mr. Bailey lowered his window and Inspector Taylor-Bolton leaned into the vehicle space. She immediately detected the smell of alcohol on Mr. Bailey's breath. She observed that his eyes were glossy. His movements were slow. His pants were undone at the waist. He said nothing about any medical condition or provided any other explanation for his driving, on which Inspector Taylor-Bolton had commented, nor for his slow movements. Although their interaction at the vehicle was brief, Inspector Taylor-Bolton concluded that Mr. Bailey's impairment was impairment by alcohol.

[10] P.C. Crowe, who had arrived on scene, came up to Mr. Bailey's vehicle beside Inspector Taylor-Bolton. He took over the investigation. P.C. Crowe asked Mr. Bailey to exit his vehicle. He did so unsteadily and abnormally slowly. He stumbled to his left toward the live lane of traffic. Inspector Taylor-Bolton had to physically assist Mr. Bailey so he would not fall.

[11] Inspector Taylor-Bolton directed Mr. Bailey to move to the passenger side of P.C. Crowe's cruiser which was behind his own vehicle. He did so. Inspector Taylor-Bolton accompanied him, "probably" holding him to help him steady himself. He proceeded unsteadily, haltingly and deliberately. Once at P.C. Crowe's cruiser, P.C. Crowe made an ASD demand. Mr. Bailey registered a fail. P.C. Crowe arrested him and placed Mr. Bailey in his cruiser. Inspector Taylor-Bolton proceeded to speak to the three civilians (off-duty police officers) who had made the original 911 call and who had also stopped at the scene. She then searched Mr. Bailey's vehicle, finding nothing to seize. P.C. Crowe left for his detachment with Mr. Bailey. Inspector Taylor-Bolton waited for the tow truck to arrive on scene to take Mr. Bailey's vehicle and then left herself.

[12] In cross-examination, Inspector Taylor-Bolton acknowledged that (i) a delay between activating emergency lights and being perceived by a driver pursued is not an unusual occurrence; (ii) Mr. Bailey's eventual pull-over and stop was properly, normally executed; (iii) Mr. Bailey exhibited no slur or other speech abnormality in speaking with her; (iv) Mr. Bailey was responsive and attentive in their dialogue; (v) his eyes were not bloodshot; (vi) she had made no notebook note of Mr. Bailey's "not being there" when she first saw him, nor of his slowness of movement; (vii) she had made no notebook note of his response to her comment concerning his driving; and (viii) her training is to make an arrest for impaired care or control when she has formed grounds. However, in this case P.C. Crowe's arrest of Mr. Bailey was for the over 80 offence.

B. P.C. Crowe

[13] P.C. Crowe had been an OPP officer for thirteen years at the time of this occurrence. He was a qualified breath technician but was on uniform road patrol in the morning of April 16, 2017. P.C. Crowe arrived on scene that morning at 3:29 a.m. He had previously heard Inspector Taylor-Bolton's radio communications about following Mr. Bailey's vehicle, his weaving, and that she wanted assistance in stopping him.

[14] On arriving on scene, P.C. Crowe approached Mr. Bailey's vehicle. Mr. Bailey was either still in the vehicle or standing by it with Inspector Taylor-Bolton. P.C. Crowe spoke to Mr. Bailey. He admitted consuming alcohol. P.C. Crowe smelled alcohol on Mr. Bailey's breath.

[15] P.C. Crowe thought he received no further information from Inspector Taylor-Bolton concerning her observations of Mr. Bailey or his driving.

[16] Mr. Bailey proceeded to P.C. Crowe's cruiser. He was "unstable" and swerved as he progressed. P.C. Crowe held his arm to assist him. P.C. Crowe noted that Mr. Bailey wore no belt and that his pants were undone at the waist. He advised Inspector Taylor-Bolton that he would be taking an ASD sample from Mr. Bailey. At 3:31 a.m., after receiving a negative response from Mr. Bailey as to whether he had any medical concerns, P.C. Crowe made an ASD demand. On his second effort at 3:34 a.m. Mr. Bailey produced a fail reading. At 3:35 a.m. P.C. Crowe arrested Mr. Bailey for s. 253(1)(b) offence. At 3:39 a.m. P.C. Crowe read Mr. Bailey his rights to counsel from the standard OPP card in his notebook. Mr. Bailey said "call a lawyer" or words to the effect. P.C. Crowe said he would make arrangements for Mr. Bailey to speak to a lawyer when they reached the OPP detachment.

[17] At 3:42 a.m. P.C. Crowe left the scene with Mr. Bailey for the detachment, arriving at 3:52 a.m. On route, P.C. Crowe mentioned again to Mr. Bailey that he could speak to a lawyer once they had reached the detachment. Mr. Bailey responded that he just wanted to do the tests.

[18] At the detachment, P.C. Crowe again gave Mr. Bailey rights to counsel, this time reading from a sign or signs posted in the detachment. P.C. Crowe was uncertain whether the wording was precisely the same as on his OPP standard card. Mr. Bailey's response was that no, he just wanted to do the tests. P.C. Crowe did not make note of Mr. Bailey's exact words of response, either as given in the cruiser or at the detachment. He reiterated in chief that Mr. Bailey said on both occasions he just wanted to do the tests and added, in his second reference, that Mr. Bailey said he didn't want to talk to a lawyer. In still another reference to the cruiser conversation only, P.C. Crowe said that Mr. Bailey stated that he just wanted to do the tests, omitting this time that Mr. Bailey said he did not want to talk to a lawyer.

[19] P.C. Crowe was asked by Ms. Dafoe what steps he normally takes for a detainee who has initially invoked his or her right to counsel and appears to change his or her mind. P.C. Crowe said that he would ask the question about exercising the right once again. He made no reference to providing a Prosper warning.

[20] P.C. Crowe regarded Mr. Bailey as having invoked his right to counsel at the roadside and as having evinced a change of mind both in the cruiser and at the detachment. Once Mr. Bailey did so at the detachment, P.C. Crowe, as qualified breath technician, proceeded to obtain the Intoxilyzer samples without any further discussion with Mr. Bailey about rights to counsel.

[21] P.C. Crowe made no observations of indicia of impairment on Mr. Bailey's part in their dealings following his arrest. He considered Mr. Bailey to have been cooperative throughout. He did not arrest Mr. Bailey for the impaired offence until Mr. Bailey had provided his Intoxilyzer samples.

[22] In cross-examination P.C. Crowe gave evidence that (i) he did not arrest Mr. Bailey for an impaired offence on scene because he did not feel he had the grounds to do so; (ii) he did not physically note or observe that Mr. Bailey had slow movements or slurred speech or glossy eyes at roadside; (iii) it was he, not Inspector Taylor-Bolton, who escorted Mr. Bailey from his vehicle to P.C. Crowe's cruiser; (iv) he made no verbatim note of Mr. Bailey's remark in the cruiser or in the cells that he did not want to speak to a lawyer; (v) Mr. Bailey never said the words "I don't want to talk to a lawyer"; (vi) Mr. Bailey said words to this effect only on route to the detachment; (vii) he had never heard of a Prosper warning, had not been aware of its requirements prior to trial, and had either not been trained with respect to it or, if trained, was no longer aware of it when dealing with Mr. Bailey; (viii) on Mr. Bailey changing his mind about speaking to a lawyer, P.C. Crowe did not offer to refrain from questioning him or from taking the Intoxilyzer samples; (ix) he was aware in dealing with Mr. Bailey that Mr. Bailey had no criminal record; (x) he continued to look for signs of impairment in Mr. Bailey after Mr. Bailey's arrest until Mr. Bailey was released from the detachment but saw none; (xi) despite noting "slurred speech" in the Alcohol Influence Report he completed at the detachment, he had no recollection of Mr. Bailey in fact exhibiting slurred speech; and (xii) the standard card issued by the OPP to its officers and which contains the OPP's prescribed ASD and Intoxilyzer wordings, among others, does not contain a Prosper warning.

IV. Analysis

A. The Over 80 Charge

[23] Mr. Rosenthal acknowledges that Mr. Bailey's success on this charge hinges on the success of his Charter application to exclude the Intoxilyzer readings; the Crown's case is not otherwise impugned.

[24] For the reasons which follow, I regard the Charter s. 10(b) breach as established and a Grant analysis as favouring exclusion.

[25] Ms. Dafoe submits that the need for a Prosper warning never arose since (i) Mr. Bailey did not clearly invoke his s. 10(b) right when it was presented to him by P.C. Crowe; and (ii) even if the right was invoked, the law does not require a Prosper warning in a situation such as this where a detainee has not, first, tried to contact counsel diligently and unsuccessfully and, second, changed his or her mind about wanting to speak to counsel.

[26] As to the latter point, the Crown relies principally on the following passage from the decision of Lamer, C.J. in R. v. Prosper, [1994] 3 S.C.R. 236 at 274:

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived.

[27] Ms. Dafoe also points out the following passage from the majority decision of McLachlin, C.J. and Charron J. in the more recent Supreme Court of Canada decision in R. v. Willier, 2010 SCC 37, 2010 S.C.C. 37:

[32] Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appeal as the duty to give a "Prosper warning", is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed.

[28] Finally in this regard, the Crown notes the application of this principle, complete with its argued limitation to a change of mind following a duly diligent, unsuccessful attempt to contact counsel, in the quite recent decisions of R. v. Blackwood, 2017 ONCJ 69 (O.C.J.) and R. v. Fountain, 2017 ONCA 596, [2017] O.J. No. 3664 (O.C.A.).

[29] With respect for Ms. Dafoe's ably-presented argument, I do not regard the obligation on the state to provide the Prosper warning – to advise the detainee of the right to a reasonable opportunity to contact counsel and to hold off in seeking to obtain incriminating evidence from the detainee during that opportunity – as subject to the limitation urged by the Crown. The passage from Prosper highlighted by Ms. Dafoe in argument is immediately followed by another which describes the Prosper warning requirement generally, not only in the circumstance where the detainee has tried diligently to reach counsel but failed.

Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

[30] I see no reason to distinguish, for Prosper warning purposes, between that class of detainees who have tried unsuccessfully to reach a lawyer and the class of those who have not. In either case, the objective of ensuring that a detainee "knows what he or she is giving up" prior to finalizing the change of mind needs to be met.

[31] As to what are said by the Crown to be affirmations in Willier, Blackwood and Fountain of the more limited circumstance calling for the warning, I note that in all three the facts were that the detainees had attempted to contact their counsel of choice unsuccessfully. It was that circumstance which the courts in those cases were addressing. The broader principle applicable to Mr. Bailey's situation is expressed by Paciocco, J.A. for the court in Fountain:

[45] As Rosenberg J.A. makes clear in Smith, at p. 384, the obligation is placed on the police to give a Prosper warning "where the detainee has asserted the right [to counsel] and then apparently change[s] his mind" (emphasis added). This is so because the purpose of the Prosper warning is to ensure that an apparent waiver of the detainee's rights under s. 10(b) is a real waiver – made clearly and unequivocally, with full knowledge of the detainee's s. 10(b) rights: Prosper, at pp. 274-275; Smith, at pp. 382-383.

[32] There is no real issue in this case whether Mr. Bailey initially asserted his s. 10(b) right. Even if P.C. Crowe's "call lawyer" note is verbatim and Mr. Bailey can fairly be seen as a man of few words, P.C. Crowe testified that he regarded Mr. Bailey as having expressed the desire to speak to a lawyer at the roadside. He also testified that he understood Mr. Bailey to have changed his mind based upon what he said in the cruiser and at the detachment. Such an inference, even in the absence of an objectively unequivocal expression of change of mind, is sufficient to trigger the Prosper warning obligation for the state: Fountain, paras. 46-47; Prosper, p. 287.

[33] There is no issue whatever that P.C. Crowe did not provide a Prosper warning to Mr. Bailey. That failure was a breach of Charter s. 10(b).

[34] As to Charter s. 24(2) and the Grant analysis, I believe I can be brief. Indeed, Ms. Dafoe acknowledged in her submissions the strength of Mr. Bailey's available arguments on seriousness and impact if a breach of s. 10(b) were found. That strength is well reflected in the following passages from Fountain:

[63] While Det. Dellipizzi presented as being careful to ensure that he did not violate Mr. Fountain's right to counsel, and attempted to facilitate that right on more than one occasion, good faith involves much more than good intentions. Prosper has been the law since 1994. It is not an obscure decision addressing a rare event. It is a long-standing precedent governing not only a ubiquitous investigative technique – the police interview – but every case where the police use a detained suspect as a source of evidence. …

[67] Specifically, this was not a technical violation. The Prosper warning is meant to ensure that individuals who have been frustrated in their attempts to enjoy their right to counsel do not give up the right to consult counsel without delay without a complete understanding of what is at stake. The Prosper warning is a substantial protection designed to preserve the integrity of a centrally important Charter right to secure legal advice when detained. …

[71] Still, the Charter right at stake here exists, in part, to ensure detainees have reasonable access to legal advice in order to rectify the disadvantage they have in preserving the right to silence, and so that they can learn about their legal rights relating to their detention. It enables detainees to get beyond learning they have a right to silence, to receiving advice on how to exercise that right. In my view, condoning the failure by the police to respect this well-entrenched Charter right by admitting Mr. Fountain's statements would do more harm to the long-term repute of the administration of justice than the exclusion of his statements.

[35] So here would admission of Mr. Bailey's readings harm the reputation of the administration of justice in the long-term. They are excluded, resulting in a dismissal of the over 80 charge.

B. The Impaired Charge

[36] The Crown's burden is to prove beyond reasonable doubt a degree of impairment of Mr. Bailey's ability to operate his motor vehicle, from slight to great, by reason of his consumption of alcohol. The Crown relies on (i) Inspector Taylor-Bolton's evidence of Mr. Bailey's driving and of Mr. Bailey's indicia at roadside and her opinion that Mr. Bailey's ability was impaired by alcohol; and (ii) on P.C. Crowe's evidence of Mr. Bailey's indicia at roadside.

[37] Mr. Rosenthal submits that Inspector Taylor-Bolton is not a reliable witness with respect to Mr. Bailey's driving in that (i) she demonstrated a verbosity and unwillingness to answer questions directly during her testimony and gave the impression throughout it that she was an advocate of the Crown's case rather than an objective witness; (ii) the slowness and glossy eyes she said she observed on scene were not indicia observed by P.C. Crowe; (iii) P.C. Crowe contradicted her evidence that she had accompanied Mr. Bailey in his walk from his motor vehicle to P.C. Crowe's cruiser; (iv) she acknowledged that Mr. Bailey began to drive normally after he appeared to see Inspector Taylor-Bolton's emergency lights; (v) according to P.C. Crowe Mr. Bailey exhibited no indicia of impairment subsequent to arriving at P.C. Crowe's cruiser until he was released later in the morning from the detachment, throwing into question Inspector Taylor-Bolton's evidence of observing indicia at the scene; and (vi) although Inspector Taylor-Bolton felt she had reasonable and probable grounds to arrest Mr. Bailey for impaired care or control at roadside, P.C. Crowe did not.

[38] Mr. Rosenthal submits that, when one combines the frailty of Inspector Taylor-Bolton's driving evidence with the equivocal nature of each aspect of the limited constellation of indicia on which the Crown seeks to rely, the Crown has not met its exacting burden of proof.

[39] Ms. Dafoe's position is that, verbose and unfocused as Inspector Taylor-Bolton may have been in the witness stand, this was merely her demeanour and did not undermine her detailed and consistent testimony about Mr. Bailey's driving or her opinion that he was impaired by alcohol. That evidence, taken together with the indicia of the odour of alcohol on Mr. Bailey's breath, his admission of having consumed alcohol and his unsteadiness in proceeding to the cruiser to which both police officers testified is enough, the Crown says, to prove some degree of impairment of Mr. Bailey's ability to operate his motor vehicle through his consumption of alcohol. The abrupt cessations of Mr. Bailey's errant driving on seeing Inspector Taylor-Bolton's emergency lights, on the one hand, and, on the other, any lack of physical coordination following his progression to the cruiser do not, Ms. Dafoe says, derogate from the significance of the driving and roadside indicia as factors in determining Mr. Bailey's impairment at the material time, that is, as he operated his vehicle.

[40] While I accept Mr. Rosenthal's submission that Inspector Taylor-Bolton's manner of testifying was unfocused to the point of evasion, I attribute this more to a dispositional failure on her part to appreciate the need to answer questions directly and succinctly, at least when one is a witness (admittedly, an odd failure given her twenty two years of experience as a police officer), than to any effort on her part to be less than truthful with the court. I also agree with Mr. Rosenthal that there was a conflict between her evidence of the glossy eyes and slow movements she observed at roadside and P.C. Crowe's evidence of his observations, as well as a conflict as to who escorted Mr. Bailey to P.C. Crowe's cruiser. However, the conflicts did not, in my view, relate to sufficiently central matters to lead to a conclusion that Inspector Taylor-Bolton was embellishing her evidence of Mr. Bailey's driving.

[41] P.C. Crowe's view that he lacked grounds to arrest Mr. Bailey for impaired care or control does not undermine Inspector Taylor-Bolton's that she did; P.C. Crowe had not seen the egregious driving described by Inspector Taylor-Bolton. I accept Inspector Taylor-Bolton's evidence concerning the driving and find that Mr. Bailey did, as she testified, consistently operate his motor vehicle for a period of approximately one minute weaving within and out of his lane and, by the slimmest of margins, averting a collision with the McKay Road bridge through a last-second correction.

[42] This driving evidence, together with the evidence of odour of alcohol on Mr. Bailey's breath, his admission of having consumed alcohol, his unsteadiness in exiting his vehicle and in his movement to the cruiser and Inspector Taylor-Bolton's opinion that Mr. Bailey was impaired would, per se, provide prima facie of impairment to the Stellato standard. But, the defence rightly says, one must consider the totality of the indicia, including the utter absence thereof following Mr. Bailey's walk to the cruiser, as well as his normal driving immediately prior to the stop. When one does, the argument goes, that totality and the many possible innocent explanations for the constellation of indicia leaves doubt.

[43] Despite Mr. Rosenthal's capable argument, I cannot agree. The evidence here of impairment, particularly the driving, is compelling. A minute of driving is not a mere instant. Where one might reasonably regard one or two swerves by a driver as attributable to some distraction, a full minute of uninterrupted, significant failure to proceed in a straight line, including a near miss with a bridge abutment, is strong circumstantial evidence of impairment, in this case impairment by alcohol given the evidence of its consumption. The abnormal driving was lengthy and imperilling and entirely consistent with impairment by alcohol. No other explanation was forthcoming. The same reasoning found in the "unexplained accident" cases concerning impairment applies here. That reasoning is set out by my colleague M. Wong J. in R. v. Rodine, [2007] O.J. No. 986 (O.C.J.) as follows:

[14] In R. v. Plater [2005] O.J. No. 6045 (Ont. Sup. Ct), the appellant rear-ended a vehicle stopped at a red light. The trial judge found the accused guilty of impaired operation based on the numerous indicia of impairment including what the Court described was an "unexplained accident". The appellant argued that the trial judge shifted the burden of proof to the accused to prove the accident was not his fault. On appeal, the Court held the trial judge quite properly referred to the car crash as "an unexplained motor vehicle accident" and in so doing, did not shift the burden to the appellant. The Court referred to the decision of Justice Hill in R. v. Censoni [2001] O.J. No. 5189 (Ont. Sup.Ct.) at paragraph 65 as follows:

In considering the reasonableness of the verdict, this court may consider the appellant's failure to testify. In doing so, it does not use that silence as evidence but rather factors the absence of any innocent explanation into its consideration of whether a conviction based on the existing evidentiary record was reasonable; Noble v. The Queen (1997), 114 C.C.C. (3d) 385 (S.C.C.) at 426-9 per Sopinka J; Regina v. Black et al, [2001] O.J. No. 709 (C.A.) at para. 3 per curiam…

[16] I am also prepared to draw another logical inference and that is Mr. Rodine's ability to drive was also impaired by alcohol. The indicia of impairment observed by both officers in addition to the unexplained accident are consistent with Mr. Rodine's ability to drive being impaired by alcohol. The Defence submission that the accused should be acquitted because the accident could have been caused by inadvertence, lack of attention, or simply bad driving, artificially isolates the evidence of the officers regarding Mr. Rodine's indicia of impairment. If I were to make such a finding, it would be based on conjecture or speculation and not based on the evidence. On the whole of the evidence, the only reasonable inference I can draw is that Mr. Rodine's ability to drive was impaired to some degree by alcohol.

[44] While the evidence of an absence of indicia following Mr. Bailey's walk to the cruiser is relevant to the determination of whether Mr. Bailey was impaired by alcohol when operating his motor vehicle, I do not regard it as leaving doubt when viewed in the context of the driving evidence, the evidence of the odour of alcohol, Mr. Bailey's admission of consumption of alcohol, Inspector Taylor-Bolton's evidence of Mr. Bailey's unsteadiness in exiting his vehicle, and Inspector Taylor-Bolton's and P.C. Crowe's evidence of Mr. Bailey's unsteadiness between his vehicle and the cruiser. The Crown has proven impairment.

V. Conclusion

[45] For the foregoing reasons, I find Mr. Bailey not guilty of the over 80 offence but guilty of the impaired care or control offence.

Released: April 24, 2018

Signed: Justice C.M. Harpur