Court File and Parties
Ontario Court of Justice
Date: 2018-11-14
Court File No.: Brampton 17-5640
Between:
Her Majesty the Queen
— and —
Yanick Roberts
Before: Justice Paul F. Monahan
Heard on: July 16, 17 and October 26, 2018
Reasons for Judgment released on: November 14, 2018
Counsel:
- D. Portolese, counsel for the Crown
- C. Da Cruz, counsel for the defendant
Judgment
MONAHAN J.:
Introduction and Overview
[1] Mr. Yanick Roberts is charged with over 80 care or control and impaired care or control where the impairment is alleged to have been by alcohol. The charges are under section 253(1)(a) and (b) of the Criminal Code respectively. Mr. Roberts is further charged with two Highway Traffic Act ("HTA") offences namely driving while his licence was suspended contrary to section 53(1) of the HTA; and, while licenced as a novice driver, having operated a motor vehicle with having consumed alcohol such that he had more than zero mg of alcohol in 100 ml of blood in his body (hereafter referred to as blood alcohol content ("BAC")) contrary to section 44.1 of the HTA. All of the offences are alleged to have taken place on April 13, 2017.
[2] The trial of all of the offences was held on July 16, 17 and October 26, 2018. There was a Charter application brought by the defendant at trial alleging a violation of sections 7, 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. The Charter Application was heard on a blended basis with the trial proper, on consent.
[3] The Crown called two witnesses on the trial proper and the Charter Application: Officer Lindsay Douglas, the arresting officer, and Officer Manjit Singh, the breath technician. The defence called no evidence on the trial proper or on the Charter Application.
[4] The issues in the case arising out of the evidence and the argument are as follows:
Issues
Issue 1 – Were there any Charter violations and, if so, should any evidence be excluded pursuant to section 24(2) of the Charter?
Issue 2 – Has the Crown proved the over 80 charge beyond a reasonable doubt?
Issue 3 – Has the Crown proved the impaired charge beyond a reasonable doubt?
Issue 4 – Has the Crown proved that the defendant is guilty of having operated a motor vehicle having consumed alcohol such that the concentration of alcohol in his blood exceeded a zero BAC contrary to section 44.1 of the HTA?
Issue 5 – Has the Crown proved that the defendant was operating a motor vehicle while his licence was suspended contrary to section 53(1) of the HTA?
[5] I will review each of the issues in turn.
Issue 1 – Were there any Charter violations and, if so, should any evidence be excluded pursuant to section 24(2) of the Charter?
[6] The defendant originally alleged violations of sections 7, 8, 9 and 10 of the Charter. In final argument, the defence advised the Court that it was no longer advancing the section 7 argument. The defence maintained the alleged section 8 and related section 9 violation on the basis that police did not have reasonable and probable grounds to arrest the defendant for impaired care or control. The defence also maintained an alleged section 10(b) violation on the basis that police did not take steps to determine and advise the defendant that the person he identified as his lawyer was not in fact a lawyer but rather was a paralegal.
Section 8 Argument
[7] I turn first to the section 8 argument. Officer Lindsay Douglas was the arresting officer and she testified at trial. She said she heard over the police radio at 11:07 PM on April 13, 2017 that there had been a single motor vehicle accident which occurred on the 401 westbound collector lanes. The information over the radio was that the driver of the vehicle was operating at a high rate of speed and had lost control of the vehicle and it had ended up in the right shoulder ditch. Officer Douglas arrived on scene at 11:24 PM. The ambulance was already there. She said that the man later identified as Yanick Roberts got out of the ambulance. He said he was slightly unstable as he got out. She smelled alcohol on his breath and his eyes were bloodshot. He was the only pedestrian around and it was not in an area that a person could walk to and from easily. He was complaining about being detained by the ambulance personnel.
[8] Officer Douglas initially made an approved instrument demand (ASD) which the defendant said he would comply with. However, the defendant was apparently being difficult about compliance with the ASD demand. Officer Douglas said that at that time she realized that she had grounds to arrest the defendant for impaired care or control and she did so without administering the ASD. She indicated that her grounds were the smell of alcohol on his breath, his continued unsteadiness on his feet, his bloodshot eyes and the information she had obtained over the police radio about the original accident.
[9] The law is clear that in the case of a warrantless search such as the breath samples that we have in this case, the onus is on the Crown to establish reasonable and probable grounds on a balance of probabilities: R. v. Collins, [1987] 1 S.C.R. 265 at paras 21-23. I recently reviewed the law on reasonable and probable grounds in R. v. Hurdon, 2018 ONCJ 667, and I rely on the law as set out in that case.
[10] In this case, the arresting officer had been a police officer with the OPP for just under a year when she undertook the investigation in this case. She said that if she were doing this case again today, she likely would have arrested Mr. Roberts for impaired care or control at the outset. In my view, she had an honest and subjective belief that she had grounds to arrest Mr. Roberts for impaired care or control and she did so. She explained that she realized as she stood by the roadside with Mr. Roberts who was being difficult with her as she tried to administer the ASD that the ASD was in fact unnecessary. Mr. Roberts was continuing to be unsteady on his feet, he had alcohol on his breath, bloodshot eyes and there was information about him having lost control of his vehicle on the 401 at a high rate of speed. In my view, she had subjective grounds to arrest for impaired care or control where the impairment was by alcohol and those grounds were objectively reasonable. There was no section 8 or related section 9 violation.
Section 10(b) Argument
[11] I turn now to the section 10(b) argument. When Mr. Roberts was initially arrested, he was given rights to counsel and he asked to speak to a lawyer called John Caldas. Efforts were made to reach Mr. Caldas but they were not successful. Mr. Roberts was asked if he wished to speak to another lawyer and he indicated that he would like to speak to someone he described as a "traffic lawyer" called "Trinity" and he gave a phone number for her. Officer Douglas also said to Mr. Roberts words to the effect "are you sure you want to talk to a traffic lawyer in connection with a criminal matter" and he indicated that he did. Officer Douglas called her and spoke to her. She identified herself to the officer as Trinity Magee and she said she had her own firm called Trinity Legal Services. A private consultation was arranged with Ms. Magee. Later, when Mr. Roberts was in the custody of the breath technician Officer Manjit Singh, Mr. Roberts confirmed to him that he had spoken to his lawyer and was satisfied with the consultation.
[12] It was an agreed fact at trial that Ms. Magee was a paralegal at the time, not a lawyer.
[13] In my view, the police had no obligation in the circumstances of this case to determine if the person Mr. Roberts identified to the police as his "traffic lawyer" was in fact a lawyer qualified to practice in Ontario. I agree with Justice Felix's observation in R. v. Miller, [2018] O.J. 3820 at para 31, that police "do not generally have an obligation to investigate the credentials or professional status of 'counsel'". In the case at bar, the whole question of who Mr. Roberts wanted to speak to was prompted by him being informed of his rights to counsel which were read to him including the question "do you wish to call a lawyer now?" It was pursuant to that inquiry that Mr. Roberts represented to police that the lawyer he wished to speak to was Ms. Magee. Further, he told police that he was satisfied with his consultation with his lawyer. I disagree with the defence submission that the description of Ms. Magee as a "traffic lawyer" and her business as being "Trinity Legal Services" should have put the police on notice or on their inquiry that she was not a lawyer. The police had no notice or reason to believe that Ms. Magee was not a lawyer and indeed Mr. Roberts represented to police that she was a lawyer. In my view, in the circumstances of this case, the police did not need to check with the law society to determine if Ms. Magee was a lawyer qualified to practice in Ontario. This argument has no merit in my view. There was no section 10(b) violation.
Charter Application Conclusion
[14] To summarize, the Charter Application is dismissed in all respects. No evidence will be excluded pursuant to the Charter.
Issue 2 – Has the Crown proved the over 80 charge beyond a reasonable doubt?
Overview of this Issue
[15] The breath technician, Officer Manjit Singh, testified that he obtained samples from an approved instrument from Mr. Roberts giving rise to BAC readings, before truncation, of 95 mg and 89 mg of alcohol in 100 mL of blood. He obtained those readings at 12:54 AM and 1:18 AM respectively on April 14, 2017. The Crown introduced into evidence the certificate of a qualified technician which indicated truncated readings of 90 and 80 mg of alcohol in 100 mL of blood respectively.
[16] I note that when the police arrived on scene at 11:24 PM in response to a radio call at 11:07 PM, Mr. Roberts was not in the motor vehicle. Further, one of the wheels on the vehicle was broken off. The vehicle was halfway on the shoulder and halfway in the ditch. There is some question in my mind as to when Mr. Roberts was last in care or control of the vehicle and whether the first breath sample was obtained within two hours after that last care or control. Neither the Crown nor the defence made any reference to this issue in their submissions. On my view of the evidence, it is not necessary for me to decide this question.
[17] The Crown says it is not relying on the certificate in this case. In effect, the Crown seeks to ignore the truncated reading of 80 mg of alcohol in 100 mL of blood contained in the certificate which it tendered at trial. It recognizes that if the Crown did rely on the certificate, the over 80 case would fail as the defendant is entitled to the lower of the two readings under s. 258(1)(c). It is not a crime to have care or control of a motor vehicle with a BAC of 80 mg in 100 mL of blood—the crime is to be over 80.
[18] Instead, the Crown says that it is relying on the oral evidence of the breath technician who testified to the effect that the breath readings, before truncation, were 95 and 89 mg of alcohol in 100 mL of blood. The Crown submits that the lower of the two readings namely 89 applies and further submits that the presumption of identity under section 258(1)(c) applies. It seeks a conviction on the over 80 charge on this basis.
Statutory Provisions
[19] Section 258(1)(c) of the Code provides as follows:
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
(emphasis added)
[20] The Supreme Court of Canada has held that s. 258(1)(c) infringes s. 11(d) of the Charter, the right to be presumed innocent until proven guilty. The reason is that it exempts the prosecution from having to establish the guilt of the accused beyond a reasonable doubt before the accused must respond: see R. v. St. Onge, 2012 SCC 57, [2012] 3 S.C.R. 187 at para. 85. The Supreme Court of Canada has held further that once s. 258(1)(c) is read down so that the evidence tending to show point need only show that the instrument was malfunctioning or was operated improperly, then this section constitutes a reasonable limit under section 1 of the Charter: see St. Onge at para. 101.
CFS Manual
[21] Officer Singh, the breath technician, testified that he is trained to follow the training manual from the Centre of Forensic Sciences (CFS). Page 103 of that manual was marked as an exhibit during the breath technician's cross-examination. It reads in part as follows under the heading "How to report breath test results":
Truncation
It is the recommendation of the Centre of Forensic Sciences and the Alcohol Test Committee that breath results be truncated before being recorded on the Certificate of a Qualified Technician and/or before communicating a BAC to the Court.
Definition
Truncation can be defined as the practice of rounding down breath alcohol concentration to the nearest ten. Truncation accounts for some of the variability associated with breath testing.
Some jurisdictions prefer to have untruncated breath alcohol concentration reported to the courts. This will affect the way in which you provide evidence in court. Nevertheless, when evaluating whether to 70 tests are in good agreement, truncated BAC's should be compared.
Two breath tests in good agreement is defined as two truncated readings that are within plus or minus 20 mg/100 mL of one another.
(emphasis added)
Evidence on Point
[22] The breath technician was cross-examined and re-examined on the practice of truncation. His evidence included the following questions and answers:
Cross-Examination
Q. So, it doesn't matter if it's – that last digit doesn't actually matter, that's not what the actual reading is because of that variability. You would agree with that?
A. Yes.
THE COURT: I'm not understanding that.
MR. DA CRUZ: Q. Let me put that there. The instrument provides a three-digit reading, correct?
A. Yes.
Q. For example, on an 80 reading, it will say 080?
A. Yes.
Q. That last digit, the third digit, that's what is being truncated down, correct?
A. Yes.
Q. And the reason that that is being truncated down is because as the manual suggests is because of the variability of the breath testing, correct?
A. Yes.
Q. It is that last digit that cannot be considered accurate as opposed to the first two digits?
A. Yes.
Q. [interruption by Crown counsel] I'm not sure "accuracy" is the best word to describe it?
MR. DA CRUZ: My friend can address that in re-exam.
MR. DA CRUZ: Q. You would agree with me that the – what you're looking for are the first two digits. If those go over 80, that's what you're looking for, that third digit is what the variability in breath testing is all about, that's why you're truncating down, correct?
A. Yes.
Q. I see. Had you been the charging officer, had that decision been given to you, would you have charged him with over 80?
A. Looking at the certificate and reading page 103, no.
Re-examination
Q. Okay. Is this something that you can rely upon, the exact result that the approved instrument displays?
A. Yes.
Q. And is it - the exact result is it inaccurate in the sense that it's not truly what their BAC is?
A. It's not inaccurate, it just takes out the variability in giving....
THE COURT: I think you're speaking across purposes. What she's speaking about the reading that comes out of the machines. You're talking about a different thing, right?
A. I'm just talking about the truncation. Can you repeat your question? I might have misunderstood.
MS. PORTOLESE: Q. So, in this case the readings were, you said, 95 and 89?
A. Yes.
Q. Effectively, did anything in your training or your experience dictate to you that 95 and 89 are incorrect and not representative of the accused BAC?
A. No.
Q. Were you ever told in your training to completely disregard the last digit that is produced by the approved instrument?
A. No.
Case Law and Analysis
[23] The practice of truncation of breath readings has been referred to in the case law although not in precisely the same context as the case at bar. In R. v. Hanson (1990), 18 M.V.R. (2d) 172 (Ont. C.A.), the Court of Appeal for Ontario approved of the truncating of readings in that case which involved an approved instrument known as a "Breathalyser" not the "Intoxilyzer" which was involved in the case at bar. The truncated readings in that case were 130 and 100 mg of alcohol in 100 mL of blood which were more than 30 mg apart. The question arose as to whether a third test had to be done and the Court said that it did not. In the course of its judgment the Court of Appeal in Hanson noted that the Alcotest Test Committee had mandated truncated readings. I note that the current provisions of the manual do not mandate truncation but rather, they recommend it.
[24] The Court of Appeal in Hanson also referred with approval to the comments of Judge Kerr in the unreported case of R. v. Dunn (September 19, 1989) as follows:
It seems to me, and I so find, that a truncated reading is the technicians judgment as to what the actual reading of the breathalyzer is… Moreover, any error in that reading would favour the accused and it belies common sense, in my view, to find the accused is in any way prejudiced by the practice of truncating the readings"
[25] The Court of Appeal in Hanson also observed that "the practice of truncating…down breathalyser readings is related the accuracy of the instrument". The Crown submits that Hanson should be distinguished on the basis that the approved instrument in that case namely a breathalyser was not accurate to the third digit but merely provided an estimate of the third digit. The Crown points out that the Intoxilyzer used in the case at bar does provide a third digit and the Crown submits it is accurate. I acknowledge the Crown's point that Hanson involved a different approved instrument, but I nevertheless observe that the practice of truncation has continued post Hanson and breath technicians are trained to do so with respect to readings from the approved instrument in this case (the Intoxilyzer). It is clear from the CFS Manual and the testimony of the breath technician in this case that truncation continues with respect to Intoxilyzer readings due to variability and accuracy. I further discuss the testimony of the breath technician on this point below.
[26] I note that it is well understood and established in the case law that the Crown does not have to rely on the certificate. It is a shortcut that the Crown can use which allows it not to have to call the breath technician and thereby save time.
[27] In support of the argument that in applying section 258(1)(c) I should adopt the second reading as 89 rather than the truncated reading of 80 contained in the certificate, the Crown refers to two cases neither of which are binding on me. The first is R. v. Fehr, [2015] A.J. No 404, in which an Alberta Court of Queen Bench judge upheld a provincial court judge's committal for trial at a preliminary inquiry on an over 80 causing death charge where the readings were 90 and 80. The appeal court judge upheld the committal for trial finding that there was other evidence to support the argument that the accused was over 80. The appeal court judge acknowledged that at trial "the Crown will have difficulty presenting any amount of evidence that can overcome the inherent doubt created by the .08 result". This case did not deal with truncation.
[28] In R. v. Parkes, [2003] O.J. 6077, Justice Baldwin of this court referred to a truncated BAC reading of 160, down from a reading of 168 initially generated by the approved instrument. She found that she could rely on the viva voce evidence of a 168 BAC rather than the truncated reading of 160 to find that the BAC was more than 160 and therefore an aggravating factor on sentencing.
[29] I do not find either Fehr or Parkes to be persuasive. Neither case considered the recommendations of the CFS that a BAC should be truncated to account for variability in readings. Moreover, neither case had the breath technician's evidence that I have in this case including his testimony that truncation is done for reasons relating to variability and accuracy as concerns the readings. Finally, neither case had to decide whether the accused was guilty of an over 80 offence as I must determine in this case.
[30] The Crown made a further argument during the course of oral argument. The Crown argued that I should just calculate the BAC of Mr. Roberts on my own without regard for s. 258(1)(c) if I did not agree that the 89 BAC should be used under s. 258(1)(c). The Crown argued that new legislation which will amend the Criminal Code and be effective in December 2018 requires that judges calculate the blood alcohol content by adding 5 mg of alcohol per 100 millilitres of blood for every 30 minutes. The Crown also said that other judges of this court had performed BAC calculations in other cases without any legislative authority.
[31] The Crown did not provide me with the new legislation nor any case law which the Crown said that I should rely upon for persuasive value to perform the BAC. I have subsequently reviewed the legislation and the relevant case law. Bill C-46 will amend the Code and it is not yet in force. Pursuant to that bill, section 320.31(4) will become part of the Code and it will require that the courts add 5 mg of alcohol in 100 mL of blood for every 30 minutes. This will only apply where the first reading is outside the two hour limit.
[32] I note further that when he was a member of this court Justice Schreck dealt with the question of whether the court could perform its own calculations of the BAC without expert evidence on the point. He did a thorough review of the case law in the area and ultimately concluded that the court should not perform its own calculations: see R. v. Stennett, [2016] O.J. 2599.
[33] Justice Duncan in R. v. Rajeswaran (2003), M.V.R. (4th) 140 indicated that a court could take judicial notice of the rate of elimination of alcohol in the human body and potentially calculate a BAC but only where, among other things, it was proved that the blood alcohol content was not rising between the time of the driving and the time of testing.
[34] In this case, I am not in a position to calculate the BAC. The provisions of Bill C-46 are not yet in force so there is no statutory authority for me to perform the calculation. Further, notwithstanding that Mr. Roberts' blood alcohol readings were apparently coming down between the time of the two tests involving him, it does not necessarily mean that his blood alcohol content was not rising between the time of care or control and the time of initial testing. There might be cases in which I would be prepared to calculate the blood alcohol content (in the absence of statutory authority) but this is not one of them. Like Justice Duncan in Rajeswaran, I cannot say whether Mr. Roberts' blood alcohol content was rising or falling between the time of care or control and the time of the first test. I am aware of the so called practical evidentiary burden on an accused person to put forth some evidence of bolus drinking (R. v. Paszeczenko; R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.) at paras 31-2) but in my view that is an entirely different question and does not arise here. On this record, I can't say whether bolus drinking is or is not required to cause a BAC to rise between the time of care or control and the time of the initial testing. In this case, it is a question of whether the Crown has proved the case beyond a reasonable doubt and, in my view, the Crown can't do it in this case by saying that the court should conduct its own BAC calculations which calculation would not be subject to any cross-examination. My conclusion in this regard has particular force in a case like this one where the difference between a finding of a guilt or innocence turns on a small margin of about 10% (the difference between a BAC of 89 and a BAC of 80).
[35] In any event, I don't believe the question of calculating blood alcohol content even arises in this case. The Crown is either relying on the s. 258(1)(c) or it isn't. In this case, I understand the Crown to be relying on s. 258(1)(c). Further, whether the Crown is relying on s. 258(1)(c) or not, the defence can rely on it. In this regard, I need to interpret the words "evidence of the results of the analyses so made is conclusive proof" (emphasis added) and the court is required to use the "lowest of the concentrations determined by the analyses" contained in section 258(1)(c). Do these phrases refer to the 89 BAC or to the truncated 80 BAC?
[36] While the Crown does not rely on the certificate, it is evidence before this Court. It is prepared by the qualified breath technician and formed part of his sworn evidence. The certificate says that the breath technician certifies that "the result of the analysis of the second of the said breath samples to be 80 mg of alcohol in 100 mL of blood" (emphasis added).
[37] Further, the breath technician acknowledged in cross-examination that the blood alcohol content readings were truncated because of variability and accuracy. The breath technician went so far as to say that had he been the charging officer he would not have laid the charge of over 80 in this case. The re-examination of the breath technician which might be taken to suggest that truncation is not done for variability and accuracy reasons, came about from leading questions by the Crown and, as such, I attach little weight to those answers. In my view, a fair reading of the evidence of the breath technician in this case and the CFS manual is that truncation is done in order to benefit an accused person for variability and accuracy reasons.
[38] Taking into account the recommendations of CFS concerning truncation; the fact that the breath technician in this case followed his training when he truncated the readings; the fact that the practice of truncating by breath technicians trained to follow the CFS manual is done for variability and accuracy reasons; and the fact that the breath technician in this case certified in the certificate that the result of the analysis of the second of the said breath samples to be 80 mg of alcohol in 100 mL of blood, not 89 mg of alcohol in 100 mL of blood, I interpret the words "evidence of the results of the analyses so made is conclusive proof" and the "lowest of the concentrations determined by the analyses" contained in section 258(1)(c), to refer to the truncated reading of 80 mg of alcohol in 100 millilitres of blood. As a result, this is conclusive proof that the BAC was not over 80 at the time of the alleged offence, assuming the first sample was within 2 hours of care or control. If it was not within 2 hours of care or control, s. 258 would not apply, and there is no expert evidence of the defendant's BAC nor am I prepared do the calculation myself for the reasons outlined above.
[39] In the circumstances and for the reasons given, there will be an acquittal on the over 80 charge.
Issue 3 – Has the Crown proved the impaired charge beyond a reasonable doubt?
[40] To prove the impaired by alcohol charge, the Crown must prove any degree of impairment, from slight to great, beyond a reasonable doubt: R. v. Stellato (1993), 78 C.C.C. (2d) 380 (Ont. C.A.) affirmed, [1994] 2 S.C.R. 478. The court should consider the whole of the evidence in determining this charge.
[41] In this case, there was some evidence which provides some support for the impaired charge. In particular, notwithstanding my conclusion that the over 80 charge has not been proven, the defendant clearly did have alcohol in his body at the time he was in care or control of a motor vehicle as confirmed by the blood alcohol readings. In addition, according to the arresting officer, the defendant had alcohol on his breath, he was slightly unsteady on his feet, he had blood shot eyes and had apparently slurred some of his words. The breath technician also said that Mr. Roberts had slurred his words and based on this observation, the readings and the alcohol on his breath, the breath technician thought the defendant was impaired.
[42] However, the impaired evidence can and should be given careful scrutiny. As concerns the arresting officer's evidence, I note that she acknowledged in cross-examination that the slurred speech was "slight" and that it was possible that she was mistaken about it. As concerns the unsteadiness on his feet, the arresting officer said he was only "slightly" unsteady.
[43] The breath technician said that Mr. Roberts had slurred his words. However, I note that he also said that Mr. Roberts was antagonistic. The antagonistic comment was based on the defendant having shrugged his shoulders in response to a question about whether a mouthpiece had an obstruction in it. I must say that I am somewhat dubious about the breath technician's evidence that Mr. Roberts was antagonistic simply because he shrugged his shoulders while in police custody. It causes me to question his evidence as to whether or not the defendant was slurring his words. I note as well that the Crown could have tendered the videotaped of the breath room which would have allowed the court to hear Mr. Roberts speaking directly and to observe him. Obviously, it is up to the Crown to decide what evidence it wants to call and I draw no adverse inference against the Crown in this case. Having said that, the central question is whether the impaired charge is proved beyond a reasonable doubt on the evidence that the Crown did call.
[44] Unlike the arresting officer, the breath technician said that Mr. Roberts was steady on his feet. The Crown says this is to be expected as the effects of the alcohol was wearing off. In my view, this is entirely speculative.
[45] As concerns the accident itself, the evidence on that issue is different than in the reasonable and probable grounds analysis. In a reasonable and probable grounds analysis, the police can rely upon hearsay evidence including the hearsay evidence that the defendant lost control of his vehicle at a high rate of speed. When considering the question of whether the Crown has proved impaired charge beyond a reasonable doubt, this evidence is admissible. Indeed, we have the defendant's explanation to police which the Crown tendered as part of its case to prove that the defendant was the driver wherein the defendant said that he was cut off by another driver.
[46] Observations at the police station are sometimes used to infer the condition of the driver at the time of driving: see R. v. Maharaj (2007), 45 M.V.R. (5th) (Sup. Ct.) at paras 27-29. In my view, evidence of the condition of the accused at the station may also benefit an accused as can be used to infer that his condition at the time of driving or care or control was different than witnesses who testify as to his condition at the roadside. It will depend upon an analysis of the evidence and the strength of the observations at the roadside to give but one example.
[47] The evidence of impairment in this case is conflicting and, in my view, comes up short of proving impairment by alcohol beyond a reasonable doubt. I have evidence of slight unsteadiness at the roadside and none at the station. I have evidence of slight or perhaps no slurring of the words at the roadside and then evidence of slurring of the words at the station according to the breath technician but I question the breath technician's evidence in this regard given the officer's other evidence that Mr. Roberts was also being antagonistic which evidence I find to be questionable.
[48] The accident is suspicious but I cannot reasonably rule out that the defendant was cut off as he said he was. In any event, putting aside the defendant's statement to police on this point, there is no admissible evidence on the cause of the accident nor can I draw any clear inference as to what caused the accident. Considering the evidence as a whole, while I am suspicious that Mr. Roberts may have been impaired by alcohol, I am not satisfied that the Crown has proved beyond a reasonable doubt that he was impaired by alcohol at the time of care or control. While I have not decided the exact time of the last care or control (and whether the first sample was within 2 hours of that time), it does not matter for this analysis. Whether I view the last care or control as being shortly before or shortly after the police radio call at 11:07 PM, the analysis and my conclusion is the same: the Crown has not proved the charge beyond a reasonable doubt.
Issue 4 – Has the Crown proved that the defendant is guilty of having operated a motor vehicle having consumed alcohol such that the concentration of alcohol in his blood exceeded a zero BAC contrary to section 44.1 of the HTA?
[49] The arresting officer identified Mr. Roberts using a photo ID health card which included his name, photograph and date of birth. Ministry of Transportation records introduced at trial show that a Mr. Yanick Roberts with the same date of birth as the defendant before this court had a G2 licence which was suspended. In any event, a G2 licence pertains to a novice driver (see Ontario Regulation 340/94). A person holding such a licence must have a BAC of zero when they are driving (see section 44.1 of the HTA).
[50] I'm satisfied that it has been established on the evidence that the person referred to in the Ministry of Transportation records is the same person who is the defendant before this court.
[51] It is clear on the evidence of Mr. Roberts was driving a motor vehicle with more than a zero blood alcohol content. The only reasonable inference on the evidence is that he was driving shortly before 11:07 PM with a BAC of more than zero. The precise time does not matter as there is no two hour rule for obtaining a sample as in the case of s. 258(1)(c). In my view Mr. Roberts is guilty of committing an offence contrary to section 44.1(3) of the HTA.
Issue 5 – Has the Crown proved that the defendant was operating a motor vehicle while his licence was suspended contrary to section 53(1) of the HTA?
[52] Section 53(1) of the HTA makes it an offence to drive a motor vehicle while one's driver's licence is suspended. The records introduced at trial suggest that Mr. Roberts' licence was suspended as of April 13, 2017. However, section 52 of the HTA contemplates providing notice of a suspension to a suspended driver by mail. It seems likely to me that such notice was given here and that is why the Ministry's records show Mr. Roberts' licence as being suspended. However, I have a reasonable doubt on this point. It could well be that no notice was ever sent to Mr. Roberts as required. In order to commit a section 53 offence, there has to be evidence of actual knowledge of the suspension or proof of a notice of suspension being provided pursuant to section 52 of the HTA. In this case, there is no evidence of actual knowledge of the suspension nor is there evidence of notice being given under section 52 to Mr. Roberts. Accordingly, I must find Mr. Roberts not guilty of the section 53(1) offence.
Summary
[53] I have found Mr. Roberts not guilty of the over 80 offence contrary to the Code; not guilty of the impaired offence contrary to the Code; not guilty of the driving while suspended pursuant to section 53(1) of the HTA; and guilty of driving with more than a zero BAC contrary to section 44.1(3) of the HTA.
Released: November 14, 2018
Signed: Justice Paul F. Monahan