ONTARIO COURT OF JUSTICE

CITATION: R. v. Bello-Santana, 2019 ONCJ 172

DATE: 2019·03·29

BETWEEN:

Her Majesty the Queen

— and —

Gilbert Bello-Santana

Reasons for Judgment

J. O’Connor ........................................................................................... Counsel for the Crown

E. Mazinani ..................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R v. Bello-Santana

I. Introduction. 2

II. Identification of the Defendant 3

A. Framework for Analysis: Identification Cases. 3

B. Factual Findings. 5

C. Factors. 5

1. Opportunity to Observe the Defendant: 401 and Kingston Rd. 5

2. Description of the Operator 7

3. Identification of the Passenger 7

4. Combined Distinguishing Features of the Driver and Passenger 7

5. Cross-racial Identification. 8

6. Identification of the Defendant and his Companion on the 7-11 Video. 8

7. Tint on the BMW sedan. 9

8. Plate Number of the BMW Sedan. 10

9. Damage to the BMW sedan. 11

10. Geographic and Temporal Proximity. 12

11. The Defendant’s connection to the BMW sedan. 13

12. Credibility and Reliability of PC Thompson. 13

13. Villaroman. 14

14. Criminal Burden of Proof 16

III. Criminal Liability. 17

A. Dangerous Driving. 17

1. Dangerous Driving: Actus Reus. 17

2. Dangerous Driving: Mens rea. 19

3. “Marked Departure” 20

4. Exculpatory Defences. 20

5. Conclusion: Dangerous Driving. 21

B. Flight from Police. 21

C. Impaired Operation. 23

I. Introduction

[1] The defendant is charged with dangerous driving, flight from police, and impaired operation arising out of a police pursuit. On January 15, 2017 at approximately 3:51 AM, several Ontario Provincial Police (OPP) officers were dispatched to investigate a high priority call about a vehicle going southbound on Highway 412 in the northbound lanes. PC Thompson encountered and pursued a BMW sedan on highway 401 near Salem Rd. This sedan fled from two pursuing police vehicles and exited the 401 at Whites Rd. in Pickering. The vehicle executed a sharp turn on Kingston Rd., hit a curb sustaining front end damage, went up and over a grassy lawn in front of a commercial business, and then fled westbound on Kingston Rd. back towards Whites Rd. The OPP officers ceased the police pursuit. Five minutes later, the BMW sedan was located at a 7-11 store at the north-east corner of Whites Rd. and Kingston Rd. The defendant was located in front of the 7-11 store. He was arrested. His wallet and identification were found in the BMW sedan.

[2] The movements of this BMW sedan, as described by PC Thompson are the foundation for the three criminal allegations. The defendant called no evidence. For the reasons that follow, the defendant is found guilty of all three counts. I will receive submissions with respect to the application of R. v. Kienapple (1974), 1974 14 (SCC), [1975] 1 S.C.R. 729 at the end of this judgment.

[3] The central issue litigated at trial was identification of the person who was driving the BMW sedan. I will address this issue first as an essential element of all of the criminal offences before the court. The Crown has established the essential element of identification beyond a reasonable doubt. Thereafter I will address the elements of each criminal offence and explain why the defendant is guilty.

II. Identification of the Defendant

A. Framework for Analysis: Identification Cases

[4] I need not cite a multitude of reports, Inquires, or case law for the general proposition that criminal courts must be very cautious with identification cases. Where the guilt or innocence of the defendant hinges on identification evidence, the risk of a miscarriage of justice is high. The threat of a wrongful conviction is a serious concern for all right-minded criminal law participants.

[5] I will rely on two illustrative case law examples to capture the appropriate framework for analysis. As explained by the Ontario Court of Appeal in R. v. Goran, 2008 ONCA 195 at paras. 19-20:

19 There is no dispute between the parties as to the inherent frailties of eyewitness identification evidence. Such evidence is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony in comparison to other types of evidence. As a result, many wrongful convictions have resulted from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses have identified the same person. See R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445(Ont. C.A.) at 450 -451, and R. v. A. (F.) (2004), 2004 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.) at para. 39.

20 For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than is generally the case with findings of fact. Justice Doherty summarized this concept in the context of an unreasonable verdict argument in R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.) at paras. 99-100, where he said:

While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness: e.g. see R. v. Miaponoose, supra; R. v. Biddle (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.) at 434-5; reversed on other grounds (1995), 1995 134 (SCC), 96 C.C.C. (3d) 321 (S.C.C.); R. v. Quercia (1990), 1990 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.).

The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is not other evidence tending to confirm or support the identification evidence.

[6] In R. v. Jack, 2013 ONCA 80, the Ontario Court of Appeal provided the following guidance at paragraphs 12-17(see also R. v. Miaponoose, 1996 1268 (ON CA), [1996] O.J. No 3216 (Ont. C.A.) at paras 9-13):

12 The jurisprudence is replete with guidance about how the jury should be instructed in cases where identity is the issue and where, as here, the Crown's ability to satisfy the jury that it was the accused who committed the crime depends on eyewitness identification.

13 The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment: see for example R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283 (Ont. C.A.), at para. 19. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197 (S.C.C.), at pp. 1209-10; R. v. Bardales, 1996 213 (SCC), [1996] 2 S.C.R. 461 (S.C.C.), pp. at 461-62; R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474 (S.C.C.), at p. 498.

14 It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248 (Ont. C.A.), at para. 5; Goran, at paras. 26-27.

15 The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? R. v. Carpenter, [1998] O.J. No. 1819 (Ont. C.A.) at para. 1. Was the sighting by the witness in circumstances of stress? Nikolovski, at 1210; R. v. Francis (2002), 2002 41495 (ON CA), 165 O.A.C. 131 (Ont. C.A.), at 132.

16 As well, the jury must be instructed to carefully scrutinize the witnesses' description of the assailant. Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? R. v. Ellis, 2008 ONCA 77, [2008] O.J. No. 361 (Ont. C.A.), at paras. 5, 8; R. v. A. (F.) (2004), 2004 10491 (ON CA), 184 O.A.C. 324 (Ont. C.A.), at para. 64; R. v. Richards (2004), 2004 39047 (ON CA), 70 O.R. (3d) 737 (Ont. C.A.), at para. 9. R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722 (Ont. C.A.), at para. 21. In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

17 Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 (S.C.C.), at pp. 468-69; R. v. Tebo (2003), 2003 43106 (ON CA), 172 O.A.C. 148 (Ont. C.A.), at para. 1

[7] Even in a judge-alone trial, it is imperative that the dangers associated with convicting largely on the basis of identification evidence be carefully examined and addressed: R. v. Hay, 2013 SCC 61 at paras. 40-41; and R. v. Hibbert, 2002 SCC 39 at paras. 44-53.

[8] It is important that a cautionary self-instruction on identification evidence be responsive to the weaknesses and the strengths of the evidentiary record rather than generic facile lip-service to the issues. This case requires a cautious examination of the identification evidence because PC Thompson (the identifier) was a stranger to the person he pursued and the circumstances afforded a limited opportunity to observe the person driving the BMW sedan. I will endeavor to show the basis for my factual findings through the examination of fifteen factors below.

B. Factual Findings

[9] PC Thompson testified that he subjectively and objectively believed that the defendant was both the person who operated the BMW sedan, and the person he arrested at the 7-11 store.

[10] Notwithstanding PC Thompson’s confident articulation, consistent with the inherent concern with eyewitness identification evidence, I viewed his testimony as simply expressing an opinion on the issue of identification. PC Thompson’s identification was not a “recognition” identification opinion – the defendant was a perfect stranger to him.

[11] I have evaluated the opinion of PC Thompson through a contextual examination of several factors that I will explain. Based on that examination, I am satisfied that the prosecution has established the essential element of identification beyond a reasonable doubt.

C. Factors

1. Opportunity to Observe the Defendant: 401 and Kingston Rd.

[12] PC Thompson testified to two observational opportunities while actively pursuing the BMW sedan: (1) the 401 highway near Brock Rd.; and (2) the grassy hill on the north side of Kingston Rd. east of Fairport Rd.

[13] With respect to his observations on the 401 near Brock Rd., PC Thompson testified that he was parallel and slightly behind the BMW sedan when he made observation of the driver somewhere between Brock Rd. and Whites Rd. just west of the collector lanes. He testified that he had a clear view of the occupants of the vehicle because his Chevy Tahoe police vehicle headlights were clearly illuminating the interior of the vehicle and he was in close proximity to the vehicle. Notwithstanding speeds ranging between 120 and 130 km per hour, PC Thompson testified that he was able to observe the operator of the sedan on highway 401.

[14] With respect to the observations made on Kingston Rd., PC Thompson testified that while pursuing the BMW sedan it entered onto the grass lawn of a commercial business. At this juncture because of this maneuver the BMW sedan was at a right angle in front of his Tahoe police vehicle. The headlamps on his Tahoe police vehicle were projecting into the cabin of the BMW sedan. There was overhead artificial lighting. He had a very good view of the driver side of the cabin due to the positioning of his police vehicle relative to the BMW sedan.

[15] It was suggested during cross-examination that he was not able to see into the vehicle because he failed to make a contemporaneous note or communicate a description of the driver to communications. PC Thompson disagreed. While agreeing that he could not make notes contemporaneously, PC Thompson pointed out that there was a description in his notes at the end of the investigation. He was challenged concerning a reference in the OPP police communications (PCC) dispatch log to “no driver DESC” and he explained that this was earlier (4:11:43 AM), and prior, to the two timeframes where he observed the operator of the sedan. He was challenged concerning a reference in the PCC log to a sole occupant. But the log itself explicitly notes that this observation was not confirmed. Finally, he was challenged concerning his failure to provide a verbal description to dispatch generally, and in particular, proximate to 4:11 AM. He explained that his immediate focus was the vehicle and not a description of the driver.

[16] I find that PC Thompson was a credible witness for reasons I will expand upon later in this judgment. He honestly and subjectively believed that the person he observed operating the BMW sedan was the person he arrested at the 7-11 store minutes later – the defendant. I also recognize that PC Thompson was an experienced highway patrol officer involved in traffic enforcement.

[17] With respect to reliability, I find that the duration of his opportunity to observe was short – measured in tens of seconds. These short opportunities were also impacted by the stress of a police pursuit. The cross-examination focusing on his failure communicate a contemporaneous description of the driver misses the point that he was actively engaged in a police pursuit of the BMW sedan. There is no evidence that he ran the plate number to acquire information about the owner of the vehicle – a basic first step if one was focused on the identity of the driver. Ultimately, PC Thompson was not successful in bringing the BMW sedan to a safe stop. After-the-fact suggestions around the issue of communicating a description contemporaneous to the pursuit do not change this fact.

[18] PC Thompson could have communicated a description upon cessation of the police pursuit and indeed the need to do so would have been more apparent. But on balance, I accept his evidence that after pulling over briefly to comply with police pursuit guidelines, he immediately fanned out with other officers to try to pick up the vehicle location once again. Within a minute or so of that endeavour, the vehicle had been located at the 7-11 store.

[19] Finally, I accept that it would have been imprudent to attempt to note a written description of the operator while engaged in a police pursuit. PC Thompson explained that during the police pursuit his investigatory focus was the description of the car and the license plate, not the specific description of the driver.

2. Description of the Operator

[20] PC Thompson described the operator of the vehicle as male, with darker skin, and unique hairstyle in that long, dark-coloured hair had been fashioned in an upright position and was hanging forward over top of his head. This person was wearing a white leisure suit that appeared to be fashioned from linen or some similar material.

3. Identification of the Passenger

[21] PC Thompson testified that the front seat passenger of the BMW sedan appeared to be female. She was distinguishable from the driver as she was wearing a red jacket and had long dark hair pulled back into a ponytail at the back. PC Thompson later determined at the 7-11 store that the passenger he believed was female, was actually male. He observed the male passenger to be associating with the defendant. He was wearing a red jacket and had long dark hair pulled back into a ponytail at the back.

4. Combined Distinguishing Features of the Driver and Passenger

[22] The descriptions provided by PC Thompson of the driver and passenger lent some synergistic impact to the identification evidence in this case. The defendant was wearing a distinctive white leisure suit, and he had a unique hairstyle. Some context is necessary. There did not appear to be much if any traffic (vehicular or pedestrian) in the area of the 7-11 store in the early morning hours. PC Thompson found this to be notable in the bedroom suburb of Pickering at 4:00 AM when he observed the operator of the BMW sedan. Minutes later he saw the defendant at the 7-11 store. I agree with his observation, as I am capable of taking some notice of the local environs of this jurisdiction. The defendant’s presentation might not be unusual in the club district in downtown Toronto at 4:00 AM, but in the bedroom suburbs, I concede that this was not a generic description (e.g., “I observed a black male”).

[23] The Court was able to observe the specific features described by PC Thompson courtesy of video surveillance from the 7-11 played during the trial. The Court directly observed the white linen style leisure suit worn by the defendant. The Court was able to see the hair style of the defendant and it generally matches the description provided by PC Thompson. As a Judge who happens to be of similar background to the defendant, this hair style is not unusual to me personally. But I accept that it was a unique feature from the perspective of PC Thompson.

[24] PC Thompson testified that the passenger was female, with long dark hair pulled back behind her head in a pony-tail. She was wearing a red jacket. As it happens, the person with the defendant at the 7-11 was male – not female. While this is a reliability concern, the impact is muted. I have also observed this person on the 7-11 video. He was in fact wearing a red jacket and had his long dark hair pulled back into a ponytail. It is understandable that PC Thompson mistook this person for female. I have considered the fact that as PC Thompson made his observations from the driver’s side of the vehicle it is understandable that he perhaps did not have as clear a view of the passenger. Even with a view of the passenger, having seen his appearance on the 7-11 video, I think that he could easily have been mistaken for female particularly when seated in the passenger seat.

[25] It is also important to note that with respect to the credibility of PC Thompson and the integrity of his identification opinion evidence he maintained an erroneous description of the passenger as female. PC Thompson could have easily adjusted his description to reflect reality (that the passenger was male) when he prepared his notes and his report. There was no description of the occupants broadcasted through police dispatch by him. He was free to modify and adjust if he was inclined to advertently bias his evidence. He maintained that he identified the passenger as female in circumstances where modifying his evidence would have added to his identification opinion. That he resisted such an opportunity lent further support for his credibility and the reliability of his observations.

5. Cross-racial Identification

[26] Notwithstanding the fact that neither side addressed this issue in submissions, I have turned my mind to the risks associated with cross-racial identification and the potential impact on reliability: R. v. Richards, 2004 39047 (ON CA), [2004] O.J. No 2096 (C.A.); and R. v. McIntosh, 1997 3862 (ON CA), [1997] O.J. No 3172 (C.A.)

[27] PC Thompson is an experienced police officer in the greater Toronto area. This is one of the most diverse cities on Earth. Although this issue was not addressed through examination I am prepared to infer that given his employment in this locale and his experience as a police officer, he has been exposed to the diverse diaspora that is the Greater Toronto Area.

[28] At times cross-racial identification presents obstacles to reliability. In this case PC Thompson noted a particular feature – the hairstyle of the person driving the BMW sedan. This feature and the clothing description contribute to the reliability of his identification opinion. I find that the specific details provided by PC Thompson, and the fact that his description of the operator was not simply generic, more than mitigates any concern. This is particularly so in the context of the analysis of all of the factors outlined in this judgment.

6. Identification of the Defendant and his Companion on the 7-11 Video

[29] PC Thompson did not dramatically or formally identify the defendant before the court in the traditional manner (i.e. by pointing to him in-dock). However, he did reference arresting the “. . . male who is the accused who is sitting in the court here”: Digital Audio Proceedings, February 20, 2019 at 3:17:26 PM

[30] The 7-11 surveillance video was not played during direct examination of PC Thompson. In any event, during cross-examination, Defense counsel played the video captured from the surveillance camera at the 7-11 presumably for the purpose of impeaching PC Thompson’s articulation of indicia consistent with impairment. As a result, counsel specifically invited PC Thompson to identify the persons depicted on video. PC Thompson explicitly and definitively identified the defendant before the Court as one of the two persons depicted on the 7-11 video. PC Thompson testified that the operator of the BMW sedan was depicted on the video and that this person was the defendant before the court. He also identified the passenger in the BMW sedan as being depicted on the video.

[31] The true magnitude of the combination of the defendant and his companion description was exemplified for the Court during this examination. What is significant is that two persons generally matching the description of the driver and passenger of the BMW sedan 5 minutes earlier were located at the 7-11 store. It is also clear from the video that there did not appear to be many if any customers in the 7-11 store at that time of the morning. Finally, PC Thompson used the video to describe the proximity of the defendant in relation to the BMW sedan parked in front of the 7-11.

[32] As a result, there is no question that the defendant before the court was clearly identified as the person who was arrested at the 7-11 store in the company of his passenger and proximate to the parked BMW sedan.

7. Tint on the BMW sedan

[33] During cross-examination it was suggested to PC Thompson that the BMW sedan had tinted windows and this would have impaired his ability to see into the vehicle. PC Thompson did not agree with that suggestion. He did not endorse any suggestion that the vehicle was tinted or that his opportunity to observe was impaired by the present of any window coating.

[34] Defence Counsel was not permitted by the Court to adduce hearsay observations from a tow truck driver given the lack of context with respect to the circumstances surrounding the tow truck driver’s alleged observations, the fact that the tow truck driver was apparently making these observations at the 7-11 location, and the absence of an undertaking to call the witness. Ultimately, the tow truck driver was not called as a witness by either side. As a result I have disregarded the hearsay-sourced submissions offered by defense counsel premised on the tow truck driver (e.g., paragraphs 11 and 24 of written submissions).

[35] No photographs of the BMW sedan were taken by the police or proffered by either the defendant or the prosecution. The 7-11 video did not provide a view of the BMW sedan windows. I accept PC Thompson’s evidence that his ability to see inside the vehicle was not impaired by tint on the windows.

8. Plate Number of the BMW Sedan

[36] PC Thompson could not recall the precise minute when he observed the licence plate on the vehicle he was pursuing. He did not write down the plate number of the vehicle he pursued while in pursuit. The defence position is that PC Thompson’s failure to write down the licence plate impacted the reliability of his evidence and negatively impacted the strength of the identification evidence. I do not agree for several reasons.

[37] First, the obvious consideration is that PC Thompson was in a high speed pursuit. PC Thompson testified that he was not able to safely remove his hands from the steering wheel to take a contemporaneous note. This is not surprising.

[38] Second, I am satisfied that PC Thompson verbally communicated the plate number to OPP communications and that this is reflected in the PCC communication log produced at trial. This issue first arose at trial. PC Thompson testified that while he did not write down the plate number, the plate number was provided to PCC verbally by way of radio communications. During cross-examination it was apparent that this log had not been disclosed. The Court intervened to facilitate the production of the PCC communication log to Defence Counsel. The next day PC Thompson facilitated disclosure of what he described as the “computer aided dispatch” produced by the PCC centre. He confirmed that as he radioed information to the PCC, a OPP civilian employee typed out information subject to that employee’s discretion (i.e., it was not a verbatim transcript of his transmissions, it was subject to the civilian employee’s discretionary approach to content and length).

[39] Third, when confronted with the content of the PCC communication log PC Thompson confirmed his testimony (from the previous day) that he could not recall precisely the minute when he observed the licence plate; However, the communication report provided further support for his testimony that he did in fact provide the licence plate number to the PCC. He referenced an entry made at 4:11:41 AM on the report that indicated that the “LOI - location of interest for this event” was viewed by the civilian employee. He explained that any person, plate number, or address added to the call is captured by the field LOI. He recognized and identified the name of the civilian employee who access the information by virtue of a displayed code. He testified that this LOI reference concerned the provision of the plate number as there was no relevant identified address or place in the occurrence he was investigating – he was pursuing a fleeing motor vehicle. PC Thompson also testified that the communication report disclosed that there was only one plate number the communication report – it was the licence plate of the BMW sedan (BNYE 731). The plate number was searched on two occasions by civilian employees. Logic dictated that the civilian employees were searching based on plate information provided by him just before 4:11 AM (he also speculated that the second officer may have provided the plate number as well but I have disregarded this reasonable speculation because the second officer was not called as a witness and there is nothing on the report to verify this belief).

[40] Fourth, when cross-examined about the fact that he had from 4:08:47 AM to 4:20:00 AM when he arrived at the 7-11 to provide the plate number, PC Thompson explained that on page 8 of the communication report there were further relevant entries at 4:08:54 AM and 4:09:14 AM where a vehicle search was conducted for support for the suggestion that he provided the plate number even prior to 4:11 AM.

[41] Finally, when cross-examined about the absence of a specific notation of the plate number in either his written notebook or his typed report prepared after the end of the investigation, PC Thompson explained that he knew that the plate number was automatically captured by the OPP information management system by virtue of it having been communicated to the PCC. Furthermore, he noted the licence plate of the subject vehicle on numerous forms prepared by him including his notice to the registrar and related Ministry of Transportation documents.

[42] While there was a significant challenge to PC Thompson in this area, the end result was that the PCC communication log augmented his testimony and supported his testimony that he had in fact communicated the licence plate to the PCC during the police pursuit.

9. Damage to the BMW sedan

[43] PC Thompson was pursuing the BMW sedan eastbound on Kingston Rd. just past Fairport Rd. when it made a sharp turn, hit the curb at the side of the road, went over the sidewalk, and onto the grass lawn of a commercial business. In executing this maneuver the BMW sedan sustained quite a bit of damage to the front wheel as it entered the curb at a high rate of speed. The vehicle re-entered Kingston Rd. and proceeded westbound at a high rate of speed. The police pursuit was called off at this point, approximately 4:15 AM according to PC Thompson’s evidence.

[44] Thereafter PC Thompson received information that the vehicle had been located at Whites Rd. and Kingston Rd. parked at a 7-11. At 4:20 AM he arrived at the 7-11 store and observed the same BMW sedan he had followed. Notably, this vehicle had the same damage to the front wheel that he had observed on the vehicle he was pursuing. During cross-examination it was suggested to PC Thompson that he did not describe the damage to the car he witnessed to OPP communications as disclosed by the PCC communication log. PC Thompson corrected counsel and showed the location where he did in fact report the damage in the communication report (page 35).

[45] In submissions, Defence Counsel cites the absence of photographic evidence. I agree with her observation. Certainly photographs of damage might be relevant to the trial. But in the end, the absence of photographs did not impact the reliability of PC Thompson’s evidence. He specifically articulated the damage he observed. Were there some utility to cross-examining him on this issue, I may reasonably assume that the seized BMW sedan was available for either party to obtain photographs.

[46] In submissions, Defence Counsel cites the absence of evidence linking debris at the roadside on Kingston Rd. to the seized BMW sedan. I agree with her observation. Some analysis of the debris at the roadside and the damage on the vehicle would be probative. One would imagine that a forensic collision police officer might have examined the vehicle or even some paint scrapings. This absent evidence is one factor that I have considered. That I agree with the submission of Defence Counsel does not end the analysis. I do not agree that there is a basis to draw a negative inference simply based on this circumstance. There is no evidence or inference that the failure to do so was a cynical tactic on the part of the police. I decline to draw an adverse inference.

10. Geographic and Temporal Proximity

[47] The evidentiary record adduced at trial supports conclusions about the geography and time. Both of these considerations lend objective support to PC Thompsons’s identification evidence. The Court may take judicial notice of familiar geographic locations within the jurisdiction. All of the specified locations in this trial are personally well known to the Court. Separate and apart from that knowledge, PC Thompson provided a very detailed step-by-step analysis of the police pursuit and his investigation. The following factors are clear:

• PC Thompson initially saw the Black BMW at 4:08 AM at the Salem Rd. exit on the 401.

• He followed the vehicle approximately ten kilometers to the Whites Rd. exit.

• The Whites Rd. exit at Kingston Rd. is approximately 500 metres due east along Kingston Rd. from the 7-11 store.

• The Whites Rd. exit at Kingston Rd. is approximately 500 metres due west of Kingston Rd. and Fairport.

• The 7-11, the Whites Rd. exit, and the Fairport location where the BMW sedan went off the road and across the grass at a commercial property are within 1 km of each other.

• The police pursuit was called off at approximately 4:15 AM after the BMW sedan went off the road and across the grass.

• The BMW sedan was last observed by PC Thompson driving westbound down Kingston Rd. at a high rate of speed.

• The 7-11 store is approximately 1 km due west of the last place the BMW sedan was observed by PC Thompson.

• PC Thompson located a BMW sedan at the 7-11 at approximately 4:20 AM.

[48] With respect to geographic considerations, the BMW sedan exited the highway, dislodged the police pursuit, and was last seen, all within a kilometer of the 7-11 store. Furthermore, the BMW sedan had sustained front end damage and was heading in the direction of the 7-11 store. With respect to time, approximately 5 minutes after ceasing the police pursuit, PC Thompson found the BMW sedan within a kilometer of the pursuit location. This close geographic and temporal proximity is another significant factor lending support to the identification opinion provided by PC Thompson. This foundational timeline and geographic evidence strongly supports the reasonable inference that the defendant was the person operating the BMW sedan minutes prior to his arrest.

11. The Defendant’s connection to the BMW sedan

[49] The prosecution did not adduce evidence of the registration or ownership of the BMW sedan located at the 7-11 store. I did not receive evidence concerning possession of keys to the BMW sedan. Nevertheless, I am satisfied that there is some evidence that the defendant was in personal or joint possession of the BMW sedan at the 7-11 store. PC Thompson observed the defendant on the sidewalk near the front bumper of the BMW sedan between the store and the vehicle. The defendant was physically very close to the vehicle.

[50] After the defendant was arrested, the police obtained his wallet and identification from the BMW sedan. There was no evidence as to specifically where in the vehicle the defendant’s wallet was located. Nevertheless, this is at least some evidence of the defendant’s connection to the BMW sedan.

[51] In assessing this area of the evidence it is important to point out what I have not considered. I have ignored any reference in Defence Counsel’s questioning to the “accused’s vehicle” given that counsel’s questions are not evidence. I have not interpreted any such questioning as constituting an admission that the BMW sedan belonged to the defendant.

12. Credibility and Reliability of PC Thompson

[52] Overall, PC Thompson was an impressive witness. He has many years of experience as a police officer. He described his approach to the investigation in clear and responsive answers to question from both Defence Counsel and the Crown Attorney. His investigation of the defendant was very fast-paced and punctuated with quick decisions. He was balancing his police investigation with a concern for the safety and protection of the public inherent in any police chase. His evidence was logical and made common sense.

[53] An issue arose during cross-examination concerning the disclosure of PCC communication records. PC Thompson was responsive and quickly obtained the records for disclosure to the Crown and then to Defence Counsel. His evidence concerning the PCC communication log was ably informed by his experience and the fact that he participated in the development of the “CAD” system as he explained.

[54] I believe PC Thompson told the truth concerning the formation of his identification opinion. In arriving at this finding, I have directly turned my mind to the premise that PC Thompson simply adapted his identification opinion of the operator of the BMW sedan to conform with a description of the defendant at the 7-11 store. I do not believe that PC Thompson, ex post facto, adapted or aligned his identification opinion consciously or unconsciously. I found him to be a very credible and balanced witness overall. He could have easily slanted his notebook entries and evidence to conform with the reality that the passenger in the BMW sedan was male rather than maintaining his position that he believed he saw a female passenger at first instance. There would have been no apparent mechanism to discover this fabrication. This is the very fabric of credibility.

[55] But credibility is not the sole concern with the analysis of identification evidence. PC Thompson’s honest and confident articulation of his identification opinion does not directly translate into accuracy: R. v. Candir, 2009 ONCA 915, [2009] O.J. No 5485. It is the reliability of the opinion that must be the focus: R. v. Oliffe, 2015 ONCA 242. I have considered and addressed the relevant reliability factors in this judgment. These considerations augment rather than detract from the overall strength of PC Thompson’s identification opinion, particularly having regard to the factors I have analysed in this judgment. PC Thompson’s subjective belief is amply supported by the analysis of all of the factors I have explained in this judgment. I endorse his identification opinion as one central factor in considering all of the factors outlined in this judgment enroute to the finding that the prosecution has established the issue of identification beyond a reasonable doubt.

13. Villaroman

[56] The prosecution theory is premised on the specific unique features of the physical identification of the defendant combined with his geographic and temporal proximity to offence location. The defence position is that given the frailties of the identification evidence it is unsafe to convict. Furthermore, the defence cites the absence of comparison of any debris at the roadside and the seized vehicle. Finally, the defence also speculates, in written submissions, that someone else could possibly have been driving the BMW sedan.

[57] The prosecution’s case concerning identification relies on a combination of direct evidence and circumstantial evidence reasoning. The guidance of the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 [Villaroman], is therefore appropriate as another component of protective self-instruction. In Villaroman, the Supreme Court of Canada provided guidance on the appropriate analysis required when the prosecution’s case depends on circumstantial evidence:

1. The trier of fact should be alerted to unconscious efforts to “fill in the blanks” or “bridge gaps” in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;

2. Reasonable doubt need not be based on an inference or a finding of fact at trial: Villaroman, at para. 28;

3. “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’”: Villaroman, at para. 28;

4. Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not speculative simply because it arises from a lack of evidence: Villaroman, at para. 35-36;

5. Requiring proven facts as a pre-condition to support explanations other than guilt improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35;

6. When assessing circumstantial evidence the trier of fact should consider other “plausible theories” and other “reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37; and,

7. In distinguishing between a plausible theory and speculation the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38.

[58] The Court cautioned at paragraph 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[59] With the guidance of Villaroman at the forefront of my mind, I recognize that if there is any reasonable construction of the facts that could support an inference other than guilt, I should acquit. While the defendant is not required to testify in a criminal trial, the fact remains that I have no evidence from him to evaluate in this analysis. While a reasonable doubt may be founded on evidence, or the lack of evidence, I cannot reasonably divine other “plausible theories” or other “reasonable possibilities” inconsistent with the defendant being the operator of the BMW sedan that night.

[60] The failure to examine and compare debris on Kingston Rd. or the failure to take pictures of the BMW sedan does not translate into a malevolent intent on the part of the investigating police officers. It simply means that it is unavailable as evidence. If the absence of that evidence sufficiently impacted the criminal standard of proof, it would translate into a reasonable doubt, and I would acquit the defendant. Various defence submissions sourced in a witness tow truck driver must be ignored given neither side called this witness and there was no agreed admission with respect to this evidence. There is no evidence that the BMW sedan pursued by PC Thompson was tinted such that it impacted his ability to observe inside the vehicle. The passenger in the vehicle was not called as a witness by either side. The defendant elected not to provide any evidence. Finally, there is nothing in the evidentiary record (or without) to support the speculative defence submission that “someone else” could have been driving. I am bound by the record produced by counsel. I may not speculate. Reasonable inferences must have some foundation. Nothing in this record (or without) admits of any other plausible theory or reasonable possibility.

[61] It is clear that the defence in this case was premised on identification. Cognizant that the choice to testify is a decision made by the defendant, there is no testimony from the defendant to evaluate concerning any alternatives. This may very well be a direct expression of a defence premised on the lack of identification.

[62] The foregoing Villaroman-related analysis should not confuse the ultimate issue and supplant the criminal burden of proof placed on the Crown. At the end of the day, the defendant is not required to testify or present any evidence – even in support of alternative circumstantial inferences.

14. Criminal Burden of Proof

[63] The ultimate question in a criminal trial concerns whether or not the prosecution has established guilt beyond a reasonable doubt. Identification of the operator of the BMW sedan and identification of the BMW sedan pursued must be proven beyond a reasonable doubt: R. v. Walizadah, 2007 ONCA 528.

[64] It is settled law that the criminal burden of proof is not applied to individual pieces of evidence: R. v. Morin, 1988 8 (SCC), [1988] S.C.J. No 80 at paras. 6, 21 [Morin]; R. v. Youssef, 2018 ONCA 16 at paras. 4-6, aff’d 2018 SCC 49; R. v. Tremble, 2017 ONCA 671 at paras. 78, 93-94. Nor are individual pieces of evidence assessed against the criminal standard of proof and then individually retained or discarded: R. v. MacIsaac, 2017 ONCA 172. The evidence led in support of all of the factors relevant to the issue of identification must be analysed cumulatively rather than in a piecemeal fashion: Morin, supra.

[65] In my respectful view, the central risk to the identification opinion provided by PC Thompson is that which is presented by confirmation bias – that the person observed driving the vehicle is the person who was investigated and arrested at the 7-11. PC Thompson did not provide a contemporaneous description of the operator to the PCC communications at the time he observed the operator. He testified that he did not turn his mind to this as his focus was on the particulars of the vehicle being pursued.

[66] I have carefully considered this evidence. But I have also considered the constellation of other factors outlined in this judgment. I am satisfied beyond a reasonable doubt with respect to the essential issue of identification. I do not see a plausible or reasonable circumstance consistent with even the risk of a wrongful identification in this case. PC Thompson’s identification opinion is bolstered by the synergistic impact of its combination with the other factors I have analysed. I find that the prosecution has established the element of identification beyond a reasonable doubt.

III. Criminal Liability

[67] Having addressed the essential element of identification, I now turn to the analysis of the defendant’s criminal liability for each count on the Information.

A. Dangerous Driving

[68] Penal negligence, as distinct from civil negligence, is focused on punishment of blameworthy conduct: R. v. Beatty, 2008 SCC 5, at para. 6 [Beatty]. Given the fact that driving is a regulated and licensed activity, it is appropriate to apply an objective test subject to two important caveats: the “marked departure” test and the allowance of exculpatory defences sourced in the subjective mindset of the driver: Beatty, at paras. 33-49. This “modified objective test” is the appropriate framework for the offence of dangerous driving: Beatty, at paras. 7; 29-32.

1. Dangerous Driving: Actus Reus

[69] The actus reus is determined by the wording of the provision in the Criminal Code, not by reference to the civil standard of negligence. As explained in Beatty at paragraphs 43-45 (see also R. v. Roy, 2012 SCC 266, at paras. 28,33-35 [Roy]; and R. v. Laverdure, 2018 ONCA 614, at para. 20 [Laverdure]):

[t]he trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[70] The analysis of actus reus requires a determination of the manner of driving, placed within the context of all of the circumstances, to determine whether or not the manner of driving constituted a danger to the public: Laverdure, at para. 22. The manner in which the vehicle was operated is the focus – not the consequence of driving: Beatty, at para. 46; R. v. Romano, 2017 ONCA 837, at paras. 65-72 [Romano]. If the actus reus is not made out on the evidentiary record there is no need to analyze the mens rea. If the actus reus is made out the trier of fact must go on to consider evidence, if any, of the subjective mindset of the defendant: Beatty, at para. 49.

[71] It is an error to move directly from a conclusion that the driving was “dangerous” to a finding that such driving constitutes a “marked departure”. The trial judge must explain how and in what way the driving went beyond negligence or carelessness and therefore reached the level of a marked departure from the standard of care that a reasonable person would have exhibited: Roy, at para. 30; Laverdure, at para. 25; and R. v. Reynolds, 2013 ONCA 433, at para. 18.

[72] I make the following findings of fact concerning the actus reus:

a. The defendant operated the BMW sedan at speeds between 120-130 km per hour on the 401;

b. The defendant slowed and then accelerated away from two police vehicles with lights and sirens operating commencing prior to Brock Rd;

c. The vehicle executed a maneuver to exit at Whites Rd. at the last moment – a moment PC Thompson would not have anticipated any driver to execute such a change;

d. The defendant ran the red stop light at the intersection of Whites Rd. and Kingston Rd.;

e. The defendant drove eastbound in the westbound lanes north of the concrete median on Kingston Rd. for approximately 100 metres;

f. The defendant executed a sudden hard turn, struck the curb, and drove up onto the grass hill or lawn in the area of Kingston Rd. and Fairport Rd;

g. The defendant drove in the direction of the pursuing police vehicle, passed it, and accelerated away from the police vehicle at a high rate of speed;

h. The defendant drove away from Kingston Rd. and Fairport at a high rate of speed;

i. The defendant was impaired, to some degree, by the consumption of alcohol when investigated at the 7-11 store;

j. No vehicles other than those being operated by PC Thompson and another police officer were impacted by the movement of the BMW sedan; and,

k. During the police pursuit, commencing on the 401, two police vehicles were illuminating 360 degree police lights and operating police sirens.

[73] It is important to note that while the police began searching for the BMW sedan because of a report that it was going the wrong way on the highway, this is not part of the factual circumstances to be analysed. The hearsay report is admissible for the assessment of reasonable grounds but not admissible as evidence receivable against the defendant. The prosecution did not call the person who reported this observation as a witness. The information also simply provides a narrative foundation for why PC Thompson was positioned on the 401 looking for a BMW sedan and why his attention was drawn to the subject vehicle in this case.

[74] There is no question that the defendant drove in a manner that was dangerous to the public having regard to all of the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was, or might reasonably be expected to be, at that place.

[75] The driving observed by PC Thompson constituted a risk to the general public and pedestrians even if none were specifically impacted: (See R. v. Mueller, (1975), 1975 1385 (ON CA), 29 C.C.C. (2d) 243 (Ont. C.A.). The prosecution is not required to prove that members of the public were actually impacted). In any event, the driving caused a clear risk to the police officers who were pursuing the defendant: R. v. Edlund, [1990] A.J. No. 162 (Alta C.A.). The totality of this driving record established by the prosecution is worthy of being considered as the actus reus for Dangerous Driving.

2. Dangerous Driving: Mens rea

[76] The Court in Beatty restated the requisite mens rea at paragraph 43 (see also Laverdure, at para. 23; and Roy, at paras. 28; 36-38):

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[77] The prosecution is not required to prove a subjective form of mens rea or a positive state of mind (e.g. intent, recklessness, or wilful blindness): Beatty, at para. 47. In circumstances where it is established that the operator purposefully maneuvered the vehicle (e.g. purposefully drove into the path of an oncoming vehicle) in a manner captured by the Criminal Code provision, it may be open to find that subjective mens rea exists but subjective mens rea is not an element of the offence: Beatty, at paras. 47-48.

[78] There is no evidence from the defendant in this case. There is simply no information as to his subjective mindset. There is nothing to suggest that his driving was under duress for example. While he was intoxicated there is no evidence to suggest that he was intoxicated such that his actions were involuntary. There is no evidence to suggest a mental health circumstance. There is evidence that the defendant soiled his pants with excrement but this evidence has not caused me to find that there was a medical emergency given the lack of evidence in that regard. The only reasonable conclusion on this record is that the driving was advertent and intentional.

3. “Marked Departure”

[79] Criminal law mandates proof of a “marked departure” rather than the civil standard of a “mere departure” from the standard expected of reasonable persons: Roy, at para. 1; Beatty, at para. 33. The addition of this “marked departure” component to the modified objective test ensures that objective circumstances of driving dangerously as contemplated in the Criminal Code provision are accompanied by the presence of sufficient mens rea to determine that the offence has been proven: Beatty, at para. 36.

[80] Evaluation of the issue of a “marked departure” involves drawing inferences from all of the circumstances including any available evidence about the defendant’s actual state of mind: Roy, at paras. 39 -40. The objectively dangerous driving exhibited meets the marked departure standard. There is no evidence of the defendant’s state of mind. The driving exhibited was a “marked departure” from the standard expected.

4. Exculpatory Defences

[81] Criminal law also mandates a contextual analysis with due consideration of any exculpatory defences to ensure that the offence is constitutionally compliant: Beatty, at para. 37. The premise that a reasonable person in the position of the defendant would have been aware of the risks associated with driving and would not have engaged in such conduct may not be sustainable on a contextual analysis of all of the circumstances: Beatty, at paras. 37-38. In such circumstances, (examples which the Court cited from R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867) a reasonable person would not have been aware of the risk or would not have been able to avoid creating the danger. It is unjust to find such persons criminally blameworthy. In this case there is simply no evidence from the defendant to evaluate. There are no sources of information from which I might evaluate his state of mind.

5. Conclusion: Dangerous Driving

[82] The driving exhibited by the defendant meets the test set out in the Criminal Code section in force at the time as amplified by the relevant controlling case law. The defendant is found guilty of dangerous driving.

B. Flight from Police

[83] The defendant is charged with flight from police. The prosecution must establish the following elements (see R. v. Kulchisky, 2007 ABCA 110, at para. 4 cited with approval by the Ontario Court of Appeal in R. v. McLean, 2016 ONCA 38):

i. The accused must be operating a motor vehicle;

ii. A peace officer must be pursuing the accused;

iii. The evidence must establish that the accused knows a police officer is in pursuit;

iv. The peace officer must be operating a motor vehicle;

v. The accused must fail to stop his vehicle as soon as reasonable in the circumstances;

vi. The accused must have no reasonable excuse for his failure to stop; and,

vii. The accused must fail to stop "in order to evade the peace officer".

[84] In addition to the factual findings explained earlier in this judgment concerning the offence of Dangerous Driving, there are additional factual findings that support a conviction for Fail to Stop for Police.

a. When PC Thompson pulled in behind the BMW sedan just past Salem Rd. the BMW sedan slowed and hazard lights were applied;

b. PC Thompson turned on his lights when another officer in a fully marked police cruiser attended just prior to Brock Rd.;

c. PC Turkington positioned himself behind the BMW sedan (fully marked police cruiser) and PC Thompson positioned his vehicle close to the left rear of the BMW sedan;

d. Once in this position both officers communicated with each other and turn on their police lights. When the BMW sedan failed to respond, the sirens were activated shortly thereafter;

e. Thereafter the BMW sedan continued driving at a high rate of speed -- approximately 130 km per hour;

f. The two police vehicles pursued the defendant to the Whites Rd. exit which was approximately 2-3 km; and,

g. The BMW sedan executed a very sudden last minute exit, at a point in time when PC Thompson would not have imagined a vehicle trying to exit.

[85] Given the specific description of the police lights provided in evidence there is simply no question that any person operating the BMW sedan would have been aware of the presence of the police vehicles generally. The duration of the police pursuit is also a factor. I find that the police lights and sirens were activated just prior to Brock Rd. This means that the police vehicles pursued the BMW sedan for approximately 2-3 km with lights and sirens activated. This was more than enough time for a vehicle to come to a stop. At one point on the 401 the BMW sedan applied hazard lights and slowed down slightly. Thereafter the vehicle accelerated again. There is no evidence from the defendant upon which to analyze this circumstance. It is at least plausible that this action was an initial reaction to the police presence.

[86] In paragraphs 27 and 28 of written submissions Defence Counsel suggests that if the defendant was driving the BMW sedan it was unlikely that he knew he was being pursued by the police. Further, it is unlikely that he would pull over at the 7-11 store if this was the case. Finally, it is unlikely that having successfully fled the police he would pull over so close to the area from which he fled. All of this is, of course, speculation. There is no evidence from the defendant. I cannot rely on these submissions nor do they cause me to have a doubt. By way of easy illustration, I could just as easily speculate that the BMW sedan had to stop given the front end damage and the damage to the wheel. Were I to do so I would be in error. There is no evidence on point.

[87] The defendant failed to stop his vehicle as soon as was reasonable. He thereafter led the police on a chase for several kilometers. There is no insight into why. For example, it appears that the defendant had defecated in his pants. This was clearly noticed by PC Thompson at the 7-11 store. Was there a medical emergency? Was the defendant ill? Did he need to use a washroom quickly? Was the passenger a factor? All of these questions, and more, are unanswered. While the defendant need not testify or prove anything in a criminal trial, it leaves the Court in a position where factual determinations and reasonable inferences are the focus in assessing the criminal burden of proof.

[88] The only reasonable conclusion, based on the record provided, is that the defendant intentionally fled the police and failed to stop for the purpose of attempting to evade the police.

C. Impaired Operation

[89] The evidentiary record clearly supports a conviction for operation while impaired by the consumption of alcohol. Once again, I adopt the factual findings outlined earlier concerning the Dangerous Driving and Flight from Police. I make the following additional specific findings of fact based on PC Thompson’s evidence:

a. The defendant’s vehicle was weaving within its lane from side to side;

b. The vehicle’s speed varied from a low of 80 km to more than 130 km per hour;

c. The defendant applied his hazard lights on and off without any apparent cause or reason;

d. When exiting at Whites Rd. the vehicle ran the red light and drove in the opposite lanes of travel;

e. The defendant appeared to be intoxicated upon arrest;

f. The defendant’s speech was slurred;

g. PC Thompson had to physically assist the defendant to maintain his balance;

h. There was an odour of an alcoholic beverage; and,

i. The defendant had defecated in his pants which was observable on his white linen suit in the area of his bottom and on the defendant’s hand.

[90] These observations described by PC Thompson were not dislodged during cross-examination. I accept his evidence.

[91] In addition to PC Thompson’s evidence the video from the 7-11 shows the defendant clearly with balance issues. I have received submissions from both counsel concerning what this video depicts. I observed the defendant somewhat unsteady on his feet such that he even leans against the sliding glass door at the front of the 7-11 store. Furthermore, I can see some discolouration on his suit consistent with him having defecated as per the evidence of PC Thompson.

[92] This record amply meets the test in R. v. Stellato, 1993 3375 (ON CA), [1993] O.J. No 18 (C.A.) aff’d 1994 94 (SCC), [1994] 2 S.C.R. 478.

[93] The defendant is found guilty of impaired operation.

Released: XXX 0, 0000

Signed: “Justice M.S. Felix”