Ontario Court of Justice

Citation: R. v. Smith, 2019 ONCJ 146

Date: 2019-03-18

Court File No.: York Region - Newmarket 17 02741

Between:

Her Majesty the Queen

— and —

Grantley Smith

Before: Justice Marcella Henschel

Heard: January 24 and September 13, 2018 and February 27, 2019

Reasons for Judgment delivered: March 18, 2019

Phillip Hsiung .................................................................................... counsel for the Crown

Jonathan Lapid .............................................. counsel for the defendant Grantley Smith

HENSCHEL J.:

A. Overview:

[1] Grantley Smith is charged with impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code. It is conceded that Mr. Smith was operating a motor vehicle after having voluntarily consumed alcohol. At issue is whether the Crown has established beyond a reasonable doubt that Mr. Smith’s ability to drive was impaired by alcohol.

[2] At trial the Crown called four witnesses. Two private investigators, Gill Hughes and John Templeton. Both were hired by an investigative agency to conduct surveillance on Mr. Smith and to determine if he was drinking and driving. The Crown also called the arresting officer, PC Messerkhanian. She stopped Mr. Smith after Mr. Templeton called 911 and reported that Mr. Smith was driving erratically and may be impaired. The Crown also called a forensic toxicologist, Dr. Marie Elliott. She gave evidence that the ability to operate a motor vehicle of a person with the accused’s Intoxilyzer readings would be impaired. To prove the results of the Intoxilyzer, the Crown tendered the certificate of the qualified Intoxilyzer technician. Mr. Smith did not testify and did not call any evidence.

B. Factual Background

[3] Gill Hughes testified that he was hired by Investigative Solutions to observe Mr. Smith on March 11, 2017. He first saw Mr. Smith at approximately 3:16 p.m. leaving his home, driving his Land Rover SUV. He saw Mr. Smith enter highway 407 from Bathurst Street and travel eastbound at 140 km/hour. Mr. Hughes testified that Mr. Smith was changing lanes frequently and moved to exit the off-ramp at McCowan Road at the last moment. He then drove northbound on McCowan Road. At the intersection of McCowan Road and Bullock Drive he testified that Mr. Smith was in the left turn lane signaling to turn left when he moved suddenly from the left turn lane, across the two northbound through lanes of McCowan Road, and into the right turn lane before turning right onto Bullock Drive.

[4] Mr. Hughes observed Mr. Smith park his vehicle at a liquor store, enter the store, and return with a bag that he placed in his trunk. At approximately 3:40 p.m., Mr. Smith drove to the Markville Mall and parked his car. At around 6:00 p.m., Mr. Smith left the mall with a female passenger, drove to highway 407 and travelled westbound to highway 404 when Mr. Hughes lost the vehicle. Mr. Hughes returned to the Markville Mall and saw Mr. Smith return to the mall hours later at approximately 12:50 a.m. when Mr. Smith dropped off his passenger at another vehicle and left the mall at approximately 12:52 a.m. Mr. Hughes made no further observations. In cross-examination, Mr. Hughes agreed that during the time he observed Mr. Smith he did not appear to have any difficulty with balance or walking.

[5] John Templeton testified that he was also hired by Investigative Solutions to conduct surveillance and to observe whether Mr. Smith was driving while impaired by alcohol. On March 11, 2017 he also saw Mr. Smith drive from the left turn lane on McCowan Road across the northbound lanes on McCowan and turn right to go to the liquor store on Bullock Drive. After observing Mr. Smith at the liquor store, Mr. Templeton followed Mr. Smith to the Markville Mall. When Mr. Smith went inside the mall, Mr. Templeton followed him inside the mall and saw him in a restaurant drinking beer at approximately 5:43. p.m. He agreed in cross-examination that he saw Mr. Smith in the restaurant only briefly, and did not know how much Mr. Smith had to drink. He said that he only saw him consume a couple of mouthfuls of beer.

[6] Mr. Templeton saw Mr. Smith leave the mall at around 6:00 p.m. and followed him on highway 407 westbound and southbound on highway 404, but lost sight of him. Mr. Templeton also returned to the Markville Mall and saw Mr. Smith drop off the female passenger. He then followed Mr. Smith to Highway 407 and made observations of his driving on highway 407 westbound. He testified that he observed Mr. Smith drift from the right hand lane to lane two, and then after travelling about one kilometre, drift back to the right hand lane. He indicated that as he continued along highway 407 he drifted on two occasions from the right hand lane to the left lane and back. He indicated the drifting movements did not appear to be deliberate. Mr. Smith did not signal, and there did not appear to be any reason for the change of lanes. He did not need to pass another vehicle. He said that Mr. Smith’s speed varied from 95 km/hour to 120 km/hour. As a result of his observations Mr. Templeton called 911 and advised police that he was following a possibly impaired driver. Mr. Templeton continued to follow the vehicle and pulled closer. He indicated that as they approached Yonge Street he could see that Mr. Smith was not maintaining a straight line in his lane. He was moving from side to side within the lane. Mr. Templeton testified that at the exit from highway 407 to Yonge Street it appeared that Mr. Smith was going to exit. He entered about halfway onto the off-ramp and then appeared to change his mind, as if he realized that he was exiting at the wrong road, and “veered” back onto the 407 right hand through lane and then continued to the Bathurst Street exit, where he exited to travel northbound. He drove a short distance on Bathurst Street and then turned left onto Summeridge Drive. Mr. Templeton saw that a police vehicle stopped Mr. Smith and he pulled into a plaza to wait for police. Mr. Templeton testified that the road and weather conditions were good.

[7] In cross-examination, Mr. Templeton agreed that if Mr. Smith was texting that could explain the erratic driving he observed on highway 407. However, he said that he did not see any light indicating use of a cellular phone. He acknowledged that he might not see the light from a phone depending on how it was positioned. Mr. Templeton also agreed that other than the erratic driving he saw no other indicia of impairment, but noted that he made only brief observations of Mr. Smith.

[8] At 12:52 a.m., PC Messerkhanian was dispatched to respond to the call. She was located on Bathurst Street on the bridge over Highway 407 and first saw Mr. Templeton’s vehicle and the Land Rover driven by Mr. Smith on the off-ramp from highway 407 to Bathurst Street in Richmond Hill. The Land Rover was signaling to go northbound. She observed Mr. Smith travel northbound on Bathurst Street and make a left turn onto Summeridge Drive. PC Messerkhanian then stopped Mr. Smith. In total her observations of Mr. Smith’s driving were for a period of less than five minutes and over a distance of approximately 200 metres. She did not observe any unusual or erratic driving.

[9] After stopping the vehicle, PC Messerkhanian spoke with Mr. Smith. She could smell the odour of alcohol coming from his breath. She requested his documents and he retrieved the vehicle manual folder but then stared blankly at the folder. PC Messerkhanian asked him a second time to produce his driver’s license, ownership, and insurance and he provided the documents. PC Messerkhanian explained that when he initially removed the folder he appeared to freeze and delayed producing the documents for approximately five to eight seconds. She thought the delay was unusual.

[10] PC Messerkhanian formed the suspicion that Mr. Smith had consumed alcohol and made an approved screening device (ASD) demand. Mr. Smith provided a breath sample into the ASD and registered a fail. At 1:05 a.m., PC Messerkhanian arrested Mr. Smith for operating a motor vehicle “over 80”. At 1:10 a.m. she read Mr. Smith the rights to counsel, caution, and breath demand. While searching the vehicle, PC Messerkhanian located two whisky bottles in the rear of the vehicle in a backpack. One bottle was sealed and one was open with about 1.5 inches of the whisky missing.

[11] At 1:16 a.m., PC Messerkhanian drove Mr. Smith to the Aurora OPP detachment, arriving at 1:32 a.m. Mr. Smith was booked, spoke with duty counsel, and was turned over to the qualified breath technician, PC Turpin. PC Turpin did not testify, but the certificate of a qualified technician was marked as an exhibit. The certificate indicated that Mr. Smith provided two samples of breath and truncated readings of 190 mg/100 ml of blood and 170 mg/100 ml of blood were obtained at 3:11 a.m. and 3:35 a.m. on March 12, 2017. [^1] PC Messerkhanian noted that Mr. Smith appeared to be very thirsty when he was with the breath technician and she obtained water for him.

[12] Although PC Messerkhanian originally arrested Mr. Smith solely for operating a motor vehicle “over 80”, she subsequently received information from a statement obtained from Mr. Templeton, and decided to charge Mr. Smith with impaired driving in addition to operating a motor vehicle “over 80”. PC Messerkhanian acknowledged that throughout her dealings with Mr. Smith she did not observe a number of common physical indicia of impairment. She agreed that Mr. Smith’s speech was not slurred, and that she did not observe any difficulties with walking, balance, or motor skills. She agreed that Mr. Smith responded to questions quickly and coherently. PC Messerkhanian agreed that she did not see anything remarkable about Mr. Smith’s driving, noting however that she observed Mr. Smith drive for only a brief period and for a short distance.

[13] At 5:05 a.m. PC Messerkhanian served Mr. Smith with the Certificate of a Qualified Technician and he was released from the station a short time later.

[14] The Crown and defence filed as an agreed statement of fact, an excerpt from the alcohol influence report prepared by the qualified technician, PC Turpin. In it PC Turpin recorded his observations of Mr. Smith including that: an odour of an alcoholic beverage was present, nothing unusual was noted regarding Mr. Smith’s face, his eyes were bloodshot, speech was “good”, clothing was orderly, he was cooperative, and his balance was “ok”. PC Turpin did not note any unusual actions.

[15] Dr. Marie Elliot, a forensic toxicologist was qualified to give opinion evidence regarding the absorption, distribution, and elimination of alcohol in the human body, and the effects of alcohol, blood alcohol analysis and the operation of the Intoxilyzer instrument. Her report was filed as an exhibit. Dr. Elliot testified that based on a truncated breath test result of 170 mg of alcohol in 100 ml of blood at 2:35 a.m. on March 12, 2017[^2] that between 12:45 a.m. and 1:15 a.m. Mr. Smith’s blood alcohol content (BAC) would have been between 170 mg and 205 mg/100 ml of blood. The projected range is independent of the gender, height, weight, and age of the individual. Dr. Elliott testified that the range is dependent on the following additional factors:

• A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 ml per hour.

• Allowance for a plateau of up to two hours.

• No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident.

• No consumption of alcoholic beverages after the incident and before the breath tests.[^3]

[16] Dr. Elliot indicated in her evidence that the operation of a motor vehicle is a complex task. It requires the integrity of a variety of sensory, motor, and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance, and vision. She explained that alcohol slows down the rate at which an individual can process information and as a result impacts upon the faculties required to operate a motor vehicle. For example, it may cause a person to focus on one or two tasks rather than the multiple tasks required by a driver. She noted also that alcohol has been shown to impact a person’s tracking ability, which is the ability to maintain proper lane position.

[17] Dr. Elliott indicated that based on a critical review of the relevant scientific literature (laboratory, closed-course driving, and crash risk assessment), in her opinion impairment with respect to driving becomes significant at a BAC of 50 mg/100 ml of blood and increases from then onward. Dr. Elliott testified that this opinion is shared by the Centre of Forensic Sciences, but agreed that there is disagreement amongst forensic toxicologists regarding whether impairment becomes significant at a BAC of 50 mg/100 ml of blood.

[18] Dr. Elliot explained that there is a distinction between intoxication and impairment. She defined intoxication as visible signs of the effects of alcohol, such as slurred speech, staggering gate, and red glassy eyes, whereas impairment signifies a decrease in an individual’s ability to perform a task, such as driving. She indicated that impairment may occur in the absence of visible signs of alcohol intoxication. The impairment of faculties required for driving, such as choice reaction, may not be noticeable unless that faculty is challenged.

[19] Dr. Elliott indicated that when a person consumes alcohol regularly, they can develop tolerance to some of the effects of alcohol. Tolerance develops readily for simple tasks performed frequently like speaking, walking, and balance, such that a non-tolerant person will show signs of intoxication, whereas a tolerant person may not. Complex tasks, like operating a motor vehicle, are resistant to the development of tolerance. Where there are obvious signs of intoxication this will be an indication that simple tasks are impaired and it follows that more complex tasks, such as operation of a motor vehicle, will also be impaired. Dr. Elliot explained that an individual’s ability to drive may still be impaired despite the absence of physical signs of intoxication.

[20] Dr. Elliot testified that as BAC increases the degree of impairment, including the number of faculties effected, increases and that this applies to all individuals regardless of tolerance. Whether impairment is apparent depends on the complexity of the driving task. The impairing effect of alcohol is greater in driving situations that are unpredictable and that require a rapid and appropriate response.

[21] Dr. Elliot indicated that in her opinion an individual’s ability to drive would be impaired with a BAC of 170 to 205 mg/100 ml of blood. She indicated that at that level, the likelihood that someone would not be impaired would be extremely remote. Dr. Elliot testified that if an individual did not show physical signs of intoxication at those BAC levels, it would suggest development of tolerance, but even in the absence of physical signs of intoxication at a BAC of 170 mg/100 ml of blood she would expect an individual to be impaired.

[22] In cross-examination Dr. Elliott agreed that her conclusions apply to the majority of individuals but absent testing every individual she cannot state that the conclusions apply to every individual or specifically to Mr. Smith, and as a result cannot give evidence about his exact condition.

C. Positions of the Parties

[23] Mr. Hsiung submits that I should find that the Crown has proven the offence of impaired driving beyond a reasonable doubt based on the evidence of erratic driving observed by Mr. Templeton on highway 407, the high blood alcohol readings obtained by the qualified breath technician, the observations of PC Messerkhanian, and the expert evidence that an individual with such readings would be impaired. The Crown submits that the absence of physical signs of intoxication is as a result of tolerance, and should not lead to a conclusion that Mr. Smith’s ability to drive was not impaired. Driving is a complex task and the observations of Mr. Templeton confirm that Mr. Smith’s ability to drive was impaired.

[24] Mr. Lapid submits that I should have a reasonable doubt that Mr. Smith was impaired because he showed none of the typical signs of intoxication. Neither the arresting officer nor the qualified breath technician, professionals with experience with impaired drivers, observed obvious signs of intoxication. Mr. Lapid emphasized that PC Messerkhanian did not initially arrest Mr. Smith for impaired driving because she did not have sufficient grounds to arrest for impaired driving. Mr. Lapid submits that Dr. Elliot cannot be relied upon to establish that Mr. Smith was impaired because she did not test him personally and agreed that she could not comment directly on Mr. Smith’s condition. Her evidence was expressed in generalizations. Finally, Mr. Lapid submits that there could be numerous reasons for the erratic driving, apart from impairment, and notes that there was evidence of bad driving much earlier in the day.

D. Analysis and Conclusions

[25] Mr. Smith is presumed to be innocent, unless and until the Crown has proven the essential elements of the offence of impaired driving beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[26] In R. v. Stellato (1994), 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160 the Supreme Court of Canada established that impaired driving can be proven by proof of any degree of impairment by alcohol of the ability to drive, ranging from slight to great. The Court specifically rejected the assertion that s. 253(1)(a) required proof of a marked level of impairment.

[27] In determining whether the Crown has established that an individual’s ability to drive was impaired beyond a reasonable doubt, indicia of impairment must not be considered piecemeal or in isolation but rather the totality of the evidence as a whole must be considered.[^4]

[28] Applying the test set out by the Supreme Court in Stellato, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Smith’s ability to operate a motor vehicle was impaired by alcohol. I reach this conclusion based upon a consideration of the totality of the evidence including the following:

• The evidence of erratic driving on highway 407 observed by Mr. Templeton shortly prior to when Mr. Smith was stopped by PC Messerkhanian including :

o Drifting without signaling from the right hand lane to lane 2, and then back to the right hand lane on two occasions.

o Variability in speed from 95 km/hour to 120 km/ hour.

o While approaching Yonge Street moving from side to side within the lane (difficulty tracking).

o At the exit from the 407 highway to Yonge Street entering into the deceleration lane to exit onto Yonge Street and then “veering” back onto the 407 right hand through lane.

o The road conditions were good, and the absence of any external event, force, or condition that caused or contributed to the erratic driving.

• After being stopped by PC Messerkhanian, when asked to provide his documents, Mr. Smith retrieved his folder and stared blankly at the folder, appearing to freeze for five to eight seconds.

• The odour of alcohol coming from his breath noted by PC Messerkhanian at the roadside, and the breath technician, in the alcohol influence report.

• Bloodshot eyes as noted by PC Turpin.

• The Intoxilyzer readings of 190 mg/100 ml of blood and 170 mg/100 ml of blood at 3:11 a.m. and 3:35 a.m. (times adjusted for daylight savings time).

• The expert opinion evidence of Dr. Elliot that, at the time of driving Mr. Smith’s BAC would have been between 170 mg/100 ml of blood and 205 mg/100 ml of blood.

• Dr. Elliot’s expert opinion that the ability of an individual with a BAC of 170 mg/100 ml of blood to operate a motor vehicle would be impaired, and that the likelihood that anyone with that BAC would not be impaired is “extremely remote”.

[29] I have considered the defence submission that I should approach the evidence of Mr. Hughes and Mr. Templeton with caution because of the potential for bias because they were hired to observe Mr. Smith and were specifically looking for evidence of drinking and driving. However, I am satisfied that both Mr. Hughes and Mr. Templeton were credible witnesses. They were not retained directly by the party who wished to gather information about Mr. Smith, but rather were working for an investigative agency and were paid by the agency. Their remuneration was not dependent on a particular outcome or upon securing evidence of impairment. Neither Mr. Templeton nor Mr. Hughes were particularly “invested” in the investigation of Mr. Smith. Mr. Templeton made observations of Mr. Smith only on March 11/12, 2017 and Mr Hughes observed Mr. Smith only on the date of the offence and on one subsequent occasion.

[30] I am satisfied that neither Mr. Templeton nor Mr. Hughes embellished or exaggerated their evidence. In my view they gave their evidence in a balanced and straight forward manner. For example, both readily agreed that they did not observe any physical indicia of intoxication. Mr. Templeton agreed that although he saw Mr. Smith drinking beer in a restaurant, he only saw him briefly, and could not say how much he drank, indicating he only saw him drink about two mouthfuls. If either Mr. Hughes or Mr. Templeton were seeking to distort the facts to achieve a particular result they could easily have indicated that they saw indicia of intoxication such as difficulty with walking or balance. Neither did so. I accept Mr. Hughes and Mr. Templeton’s evidence and find their evidence to be credible and reliable.

[31] Erratic driving can give rise to an inference of impairment. However, in reaching my conclusion that Mr. Smith was impaired I have not relied upon the evidence of erratic driving observed by Mr. Hughes and Mr. Templeton at around 3:40 p.m. when Mr. Smith crossed several lanes of traffic on McCowan Road in order to turn right on Bullock Drive or the other evidence of aggressive or erratic driving that occurred in the afternoon. This driving occurred more than eight hours prior to the traffic stop and obtaining of the breath readings and in my view it cannot properly be relied upon to support a finding that Mr. Smith’s ability to drive was impaired between 12:50 and 1:05 am.

[32] In contrast I am satisfied that when considered in context of the evidence as a whole that the erratic driving on Highway 407 between approximately 12:45 a.m. and 1:05 a.m. may be relied upon and that it was due to impairment by alcohol.

[33] In respect of the defence submission that I should have a reasonable doubt because the forensic toxicologist, Dr. Elliot, could give “generalizations” only regarding the range at which impairment begins, rather than evidence specific to Mr. Smith, I do not accept this submission. This is not a case where Mr. Smith’s BAC was at or near 50 mg/100 ml of blood, a range at which there may be some disagreement amongst forensic toxicologists as to whether impairment will generally be present. Mr. Smith’s BAC was more than three times that at which toxicologists at the Centre of Forensic Sciences agree that impairment of the ability to drive becomes significant. Moreover, I accept Dr. Elliot’s evidence that the potential that anyone with a BAC of 170 mg/100 ml of blood would not be impaired is extremely remote. When I consider this evidence in the context of the evidence as a whole, including the erratic driving described by Mr. Templeton, I am satisfied beyond a reasonable doubt that Mr. Smith’s ability to drive was impaired by alcohol.

[34] I do not accept the defence submission that there is a reasonable doubt as a result of the absence of physical indicia of intoxication often present in cases of impaired driving such as difficulty with balance or walking, and slurred speech. While evidence of physical signs of intoxication may support a finding of impairment, a conviction for impaired driving does not require evidence of physical manifestations of impairment.[^5]

[35] I accept the evidence of Dr. Elliot that an individual’s ability to drive can be impaired, even though the individual does not show many of the common physical signs of intoxication. As Dr. Elliot explained, driving is a complex task. It is a task more complex than walking, standing, or maintaining balance. An individual must be able to draw upon multiple mental faculties including vision, reaction and response time, perception, divided attention, regard for the rules of the road, and have the ability to exercise judgment and process multiple tasks together. Impairment of the ability to drive relates to a reduced ability, in some measure, to carry out these tasks that are necessary to drive safely.

[36] These are concepts that are well recognized in law. In Censoni, Justice Hill emphasized that it must be remembered that slight impairment to drive relates to “a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like”, and endorsed the finding of the Alberta District Court in Mackenzie “that there may be dangerous impairment even though there are no objective symptoms of intoxication”.[^6]

[37] I have no doubt, based on the totality of the evidence, that although Mr. Smith did not show obvious physical signs of intoxication that his ability to carry out the complex task of driving was impaired. I do not accept, nor am I left with a reasonable doubt, that Mr. Smith was merely a bad driver. Rather, I find beyond a reasonable doubt that Mr. Smith’s driving ability was at least slightly impaired as a result of the consumption of alcohol.

[38] For these reasons, I am satisfied that the Crown has proven the essential elements of the offence of impaired driving beyond a reasonable doubt and there will be a finding of guilt on count 1.

Released: March 18, 2019

Signed: Justice Marcella Henschel

[^1]: Daylight savings time took effect on March 12, 2017 such that at 2:00 a.m. the clocks moved forward one hour to 3:00 a.m. The times on the certificate were adjusted for daylight savings time.

[^2]: This time is not adjusted for daylight savings time.

[^3]: The defence did not allege the consumption of a large quantity of alcohol within 15 minutes of driving and did not allege post-driving consumption of alcohol prior to the breath tests. On the evidence, I am satisfied that the Crown has proven the factual assumptions relied upon by the expert witness. Mr. Smith was driving his vehicle, dropped off his passenger, and then was again driving for some distance from Markville Mall to the 407 Highway and Bathurst Street, and was then with PC Messerkhanian until his arrest. He had been driving for a period of time prior to 12:52 a.m. when the call first came into dispatch. He was arrested 13 minutes after the call came in at 1:05 a.m. Although there was alcohol located in the vehicle, none was immediately accessible to the driver. It was contained in a backpack in the rear of the vehicle.

[^4]: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta C.A.).

[^5]: R. v. Kumric, [2006] O.J. No. 4886 (SCJ), at paras. 22-26. R. v. Hidi, 2018 ONSC 7478, at para. 16.

[^6]: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (SCJ), at paras. 47 and 49, citing R. v. McKenzie (1955), 1955 CanLII 452 (AB SCTD), 111 C.C.C. 317 (Alta. Dist. Ct.) at pp. 318-319; Kumric, at para. 24, and R. v. Linstead, [1998] O.J. No. 2950 (Gen. Div.).