ONTARIO COURT OF JUSTICE

CITATION: R. v. Pratapagiri, 2019 ONCJ 32

DATE: 2019 01 21

COURT FILE No.: 17-14067 Brampton

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHAN PRATAPAGIRI

Before Justice P.T. O’Marra

Heard on December 18 and 19, 2018

Reasons for Judgment released on January 21, 2019

Keisha Athanas & Jennifer Goulin ............................................... counsel for the Crown

Mark Hogan ................................................................. for the defendant Shan Pratapagiri

P.T. O’Marra J.

INTRODUCTION:

[1] On November 7 2017, at 3:28 am, Constable Haramis was responding to an unrelated emergency call when he initiated a traffic stop of the Defendant’s vehicle after he observed the Defendant drove through a red light at the intersection of Queensway East and Camilla Road in the City of Mississauga. After having a brief conversation with the Defendant, Constable Haramis asked the Defendant to exit his vehicle and accompany him to his cruiser. The Defendant was arrested for impaired driving.

[2] A few minutes later Constable Lota arrived on scene and took over the arrest of the Defendant. Constable Lota transported the Defendant to 12 Division. After the Defendant provided two samples of his breath, he was arrested for driving his vehicle with excess blood alcohol. The Defendant pled not guilty to both charges and a trial was held.

[3] There were two general issues that arose. This first is whether the breath tests and any evidence gathered, after the Defendant was asked to exit his vehicle, ought to be excluded from the trial after alleged breaches of the Defendant’s rights constitutionally guaranteed by the Charter of Rights and Freedoms (“Charter”). The second is whether the Crown has proven beyond a reasonable doubt that the Defendant was driving while his ability was impaired by the consumption of alcohol. The matter proceeded by way of a blended voir dire. The Crown called three (3) police witness. The Defendant did not testify on the voir dire nor the trial proper.

ISSUES AND ANALYSIS:

Were the Defendant’s Charter rights breached and, if so, should the evidence gathered, including the breath test results, be excluded from the trial?

The positions of the parties:

[4] The Defendant argues that his rights protected by sections 8, 10(a), and 10(b) of the Charter were violated by Constable Haramis and Constable Lota and therefore seeks exclusion of the evidence gathered at the roadside and the breath test results as a remedy pursuant to section 24(2) of the Charter.

[5] With respect to section 8, the Defendant submits that Constable Lota lacked the objectively reasonable grounds to make a valid breath demand. The defendant further submits, that if the Crown, in the alternative, relies on the breath demand made by the Qualified Breath Technician Constable Holmes as a valid demand, such a demand was improperly made and was not made “as soon as practicable”.

[6] With respect to section 10(a), the Defendant asserts that after the Constable stopped his vehicle, Constable Haramis instructed the Defendant to exit his vehicle and failed in his duty to inform the Defendant of his reasons for doing so.

[7] With respect to section 10(b), the Defendant was not advised by Constable Lota of his right to retain and instruct counsel without delay for approximately ten (10) minutes after his arrest. The Defendant argues that this was an unreasonable delay that cannot be justified due to a public or officer safety concern. The Defendant argued that Constable Lota further disregarded the Defendant’s section 10(b) right after the Defendant expressed a desire to speak to duty counsel, but rather than holding off, Constable Lota questioned the Defendant about how much he drank that evening. The Crown readily conceded that the Defendant’s 10(b) right was breached.

[8] The Defendant urges me to find multiple and serious violations that would provide him with a remedy to exclude the breath test results that would dictate a dismissal of the “over 80” charge.

[9] The Crown concedes that the delay in giving rights to counsel resulted in a breach of the Defendant's section 10(b) Charter right. However, the Crown argues that the delay in this case was seven (7) minutes. They do not, however, agree that any of his other Charter rights were violated. The Crown submits that whether there was one breach or multiple breaches, evidence should not be excluded from the trial.

[10] For the reasons set out below, I find that Constable Holmes made a valid breath demand, and therefore there was no breach of the Defendant’s section 8 Charter rights. I do not find that the Defendant’s right under section 10(a) was breached. However, I do find that there was a breach of the Defendant’s section 10(b) Charter right, but I decline to exclude any evidence.

[Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):

[11] In order to make any sense of whether there was a valid breath demand, there should be an analysis of the reasons for both the traffic stop and the fact that the Defendant was told to get out of his vehicle. Counsel agreed that the Defendant was legitimately stopped under the Highway Traffic Act. Counsel abandoned his argument that the Defendant was arbitrarily detained at the roadside. However, Constable Haramis did continue the detention without explanation the moment he asked the Defendant to exit his vehicle. The evidence that developed at trial, according to Constable Haramis, was that he stopped the Defendant for failing to stop for a stop light, crossing a yellow solid line and rolling through a stop sign. When he approached the vehicle he was uncertain if the driver may have been impaired by alcohol or a drug, in medical distress or was fatigued. Through the open driver side window, Constable Haramis explained to the Defendant that he stopped the vehicle due to the Defendant running the red light. Constable Haramis observed that the Defendant’s eyes were blood shot, his speech was slow and slurred. He also described that the Defendant was lethargic. Although in cross examination he could not provide examples of the kind of lethargy that he observed. The Constable asked the Defendant if he had taken any prescription drugs or otherwise. The Defendant denied taking any. The Defendant stated that he had come from a friend’s residence. At this point, Constable Haramis asked the Defendant to exit the vehicle.

[12] At 3:31 am, the Constable asked for the Defendant to produce his driver’s licence. However, the Defendant pulled out a stack of cards and “fumbled” through the stack twice and did not find his licence. When he was asked by Constable Haramis where he was going, the Defendant pointed southward and stated his home. At this point, Constable Haramis advised the Defendant that he was investigating him for impaired driving. Up until this moment the Constable had not smelled an odour of alcohol coming from the Defendant. Constable Haramis testified that he was congested that evening and could not smell anything. He directed the Defendant to accompany him to the rear of his cruiser. Constable Haramis stated that the Defendant walked “slow with deliberate steps to the cruiser”. The Constable conceded in cross examination that he did not stumble or require any assistance. Once inside the cruiser and after turning up the heat to draw out the alcohol from the Defendant, Constable Haramis asked and received the Defendant’s driver’s license. He was asked when he last consumed alcohol, the Defendant responded “twelve o’clock” with no reference to noon or midnight. However, Constable Haramis testified that he interpreted the answer to mean midnight.

[13] Constable Haramis exited his cruiser, and opened up the rear passenger door. Upon opening the door, the Constable was able to detect alcohol emanating from the Defendant’s breath. He also observed that the Defendant looked forward and would not turn his head towards the Constable. He noticed that the Defendant’s eyes had a horizontal gaze nystagmus. In other words, his eyeballs were involuntarily moving laterally. According to the Constable, horizontal gaze nystagmus can have multiple causes, one being alcohol consumption. At 3:36 am Constable Haramis arrested the Defendant for impaired driving.

[14] Constable Haramis conceded that he did not have an ASD with him nor did he recall if he turned his mind to requesting for one.

[15] Shortly after 3:36 am Constable Lota arrived on scene. Constable Haramis testified that he provided his grounds for the arrest to Constable Lota. At 3:39 am the Defendant was transferred to Constable Lota’s custody without reading a breath demand nor advising the Defendant about his section 10(b) Charter rights.

[16] In cross examination, Constable Haramis testified that he gave Constable Lota the following grounds for the arrest: He observed the vehicle go through the red light at The Queensway, crossed over the solid centre lane on Camilla Road, and failed to come to a complete stop at Cherry Post Drive. After his vehicle was stopped, and was advised the reason for the stop, the Defendant asked “what red light?” The driver had slow and slurred speech, red, watery and blood shot eyes. He had an odour of alcohol on his breath and exhibited the horizontal gaze nystagmus while seated in his cruiser.

[17] In my view, those grounds without any doubt provided Constable Haramis to make a valid demand. However, since no demand by Constable Haramis was made the Crown relied on the demand made by Constable Lota.

[18] Constable Lota’s demand was based on the information that I have already detailed. However, Constable Lota testified that Constable Haramis only related that he had arrested the Defendant based on the “red light” infraction, the smell of alcohol and the fact that he could not produce a driver’s licence.

[19] Section 254(3) of the Criminal Code of Canada requires that ‘reasonable grounds’ exist in order to establish a valid demand. This is both a statutory and constitutional pre-condition to a lawful search and seizure under section 8 of the Charter. The existence of reasonable and probable grounds involves both an objective and a subjective component. In other words, a peace officer subjectively must have an honest belief that the subject has committed the offence and objectively there must exist reasonable grounds for this belief. (See: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C.J. No. 87 at para. 48)

[20] The test is not onerous for the Crown to meet. The Crown need only to show that the demanding officer had a reasonably held belief. While an officer needs to demonstrate more than a suspicion, the reasonable standard is less than that of a prime facie case or proof on a balance of probabilities or proof beyond a reasonable doubt. (See: R. v. Jacob, [2013] M.J. No. 105 at para. 34 and R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 at para. 23)

[21] Had Constable Haramis made the demand I would have had no hesitation in concluding that it would have been a valid one. However, I am not satisfied that Constable Lota’s demand was valid. There was no reasonable grounds to believe that the Defendant had operated his vehicle while impaired. Passing through on a red light, the smell of alcohol and not providing his driver’s licence falls well short of the reasonable and probable grounds standard of ‘slight impairment’. It may have provided the officer with a suspicion that the Defendant had alcohol in his body and therefore warranted grounds for an ASD demand but that was not the case here.

[22] I do find, however, that Constable Holmes’ breath demand was reasonable in the circumstances. He made the demand based on information provided by Constable Haramis at 3:45 am while en route to the station. I appreciate that in direct examination Constable Holmes testified that he originally believed that he was present at the station when he received the grounds from Constable Lota. That was clearly wrong. Constable Holmes corrected his evidence on this point in cross-examination, after refreshing his memory from his notes. Although he did not have an independent recollection he was confident that he received his grounds for the demand and the circumstances of the arrest over the telephone from Constable Haramis while en route. Furthermore, Constable Holmes had brought the Defendant into the breath room at 4:30 am and made observations of the Defendant. He witnessed that the Defendant had the odour of an alcoholic beverage on his breath, his eyes appeared blood shot and his speech was apparently slurred. At 4:32 am Constable Holmes made a formal breath demand. I am satisfied that Constable Holmes made a valid breath demand based on reasonable grounds that were provided to the officer over the phone by Constable Haramis and his own observations. Just to be clear Constable Holmes testified that Constable Haramis gave him the following information which can be found at page 80 of the transcript of his evidence:

At 3:36 was the time of the arrest. Rights

to counsel were at 3:46 and the time of the demand is at 3:48.

Initially, I believe acting Sergeant probably Haramis at the

time, I’m just not sure of his rank that evening, he was

probably acting sergeant, had observed the defendant, who is

seated by counsel, southbound on Camilla, I believe it’s

Camilla Crescent in – in Mississauga, travelling through a red

light at the Queensway. He was noticed weaving southbound.

Acting Sergeant Haramis stopped the vehicle for check sobriety

and of course investigate the red light offence, he noticed

the driver’s speech was slurred. The driver denied drinking

and was noticed to be slow presenting his documents and – and

handling his wallet and seemed to be unsteady. He was seated in the rear of the cruiser. There was the odour that was then

detected, odour of an alcohol. And then he admitted that he

had had one drink at midnight. Acting Sergeant Haramis then

formed the opinion that Mr. Pratapagiri, I’m sorry, was

impaired by the consumption of alcohol and he arrested him for

that offence, operating a motor vehicle when (indiscernible)

his blood alcohol. And – oh, I’m sorry, I think I may have

said that Constable Lota gave him that information. In fact,

that was directly from Sergeant Haramis. He actually phoned

me while Constable Lota was en route so that was direct from acting Sergeant Haramis.

[23] The Defendant argues that if Constable Holmes made a valid demand it was not made as soon as practicable. The demand was made 46 minutes after the Defendant was arrested. The Defendant conceded that there were no “unexplained delays” in the investigation beyond the delay in providing the right to counsel. I am satisfied, however, that once Constable Holmes received his formulation of the grounds he made a valid demand immediately. The Court of Appeal held in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1, at para. 10 “All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove ‘who, what, where, and when’ of the demand”. Moreover, the larger objective of the Criminal Code's breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3). (See: R v Deruelle, 1992 CanLII 73 (SCC), [1992] S.C.J No. 69 at p. 672 and R. v. Guenter, [2016] O.J. No. 3857 para. 89 (C.A.))

[24] The demand that was made by Constable Holmes was based on reasonable and probable grounds and was made “as soon as practicable” in accordance with section 254(3) of the Code. In the circumstances, there was no breach of the Defendant’s rights under section 8 of the Charter.

[Section 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):

[25] When a person is detained or arrested, he has the right to be told the reason why. This places a duty on the police to give clear reasons for the detention: R. v. Cole, 2017 ONCJ 83, [2017] O.J. No. 977 (O.C.J.). In R. v. Mueller, [2018] O.J. No. 2284 (S.C.J.) at paragraph 33, Justice Schreck, sitting as a Summary Conviction Appeal court, stated that an evaluation of a claim of a breach of section 10(a) Charter requires a three-fold consideration:

(a) Did the police impart information to the detainee as to the reasons for his detention?

(b) If so, was the information imparted by the police, when considered in all of the circumstances, sufficient to allow the accused to understand why he was being detained and the extent of his jeopardy such that he is able to make meaningful decisions about whether to submit to the detention and whether and how to exercise his right to counsel; and

(c) In considering this issue, a court should not assume that the detainee had engaged in the wrongdoing for which he is being investigated.

[26] Recently, the Ontario Court of Appeal in R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279, held at paragraph 78 that:

Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paragraphs 16-22. Put more purposively: "The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest", or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paragraph 125. (See: R. v. McDonald, [2018] O.J. No. 4603 at para. 25-28)

[27] In the case at bar, Constable Haramis stopped the Defendant at approximately 3:29 am. He had a conversation with the Defendant through his driver’s side window. The Constable explained that he had stopped the Defendant for “running the red light”. The Defendant stated that he was unaware that he drove through the red light. Constable Haramis observed that the Defendant had blood shot eyes, his speech was slow and slurred. He also appeared lethargic. The Constable asked the Defendant if he had taken any “drugs, prescription or otherwise” and where he was coming from. At no time while the Defendant was seated in his car and before he was asked to exit his vehicle was he explicitly told that he was being investigated for impaired driving.

[28] If a stop is not part of a RIDE program or pursuant to provincial highway legislation, a police officer must have articulable cause or reasonable grounds to detain the driver. (See: R. v. Mann, 2004 SCC 52, [2004] S.C.J. No, 49 at para. 33) I find that the Defendant was initially detained at the roadside for the purposes of an investigation of an offence under the Highway Traffic Act and that Constable Haramis articulated the reason for the stop to the Defendant.

[29] Constable Haramis’ investigation morphed into a pre-emptive investigation into whether the Defendant was impaired by alcohol. He did not specifically relate that information to the Defendant, however, as soon as he exited the vehicle and he was asked for his driver’s licence, within seconds the Defendant was advised that he was being investigated for impaired driving. There is nothing on the record before me that negatively impacted that the Defendant was not aware of the reasons for being stopped and subsequently investigated for a criminal offence.

[30] In the circumstances of this case, the Defendant’s right under section 10(a) of the Charter was not violated.

[Section 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):

[31] Everyone has the right to be given rights to counsel without delay upon being arrested. The phrase "without delay" has been interpreted to mean "immediately", subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 (S.C.C.).

[32] The Crown conceded that there was a breach of the Defendant’s right to counsel due to the seven (7) minute delay in Constable Lota advising the Defendant of his 10(b) rights. Here, the Defendant was arrested at 3:36 am by Constable Haramis. For unknown reasons Constable Haramis transferred custody of the Defendant to Constable Lota at 3:39 am. According to Constable Lota’s testimony, he did not commence reading the Defendant’s section 10(b) rights until 3:46 am. The Defendant wanted to speak to duty counsel. He did speak to duty counsel from 4:26 am until 4:32 am. There was no explanation offered to account for the delay. I find that Constable Lota did not appreciate the importance of administering the section 10(b) rights forthwith or without delay. In my view, his lack of understanding has more to do with his lack of police experience. On the date of this investigation, Constable Lota was a police officer for approximately one year. His lack of experience and understanding was further exemplified by not “holding off” any questioning until the Defendant had an opportunity to speak to duty counsel as he had requested.

[33] From 3:36 am until 3:39 am, I accept that Constable Lota was carrying out administrative duties, such as receiving the grounds of arrest from Constable Haramis and transferring the Defendant to his cruiser. From 3:39 am until 3:46 am, there was no articulable reason for this period of delay. Therefore, I find that there was a breach of the Defendant’s section 10(b) Charter right.

[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html):

[34] I must now consider whether or not the breath samples regarding the Defendant should be included or excluded from the trial under section 24(2) of the Charter. In doing so, I must keep in mind the long term effect the inclusion or exclusion of this evidence will have on society's confidence in the criminal justice system. I must carefully examine the analytical framework as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 having regard to three factors: 1) The seriousness of the Charter infringing conduct. 2) The impact on the Defendant’s Charter protected interests. 3) Society's interest in the adjudication of the case on its merits.

[35] The breach was on the lower end of the scale of seriousness. It was a technical breach that lasted approximately seven (7) minutes. However, the seriousness of the breach was slightly elevated by Constable Lota’s effort to elicit incriminating evidence from the Defendant after he asked to speak to duty counsel, when he asked the Defendant about how much he had to drink. However, the Constable did not gather any incriminating evidence before the right to counsel was provided. The breach was technical and inconsequential given that no evidence was gathered prior to the rights being given. (See: R. v. Cullota, 2018 ONCA 665, [2018] O.J. No. 3946 (C.A.) at para. 35). I accept that the Constable acted in good faith which is defined to mean where the police make an honest and reasonable error regarding the scope of their legal authority. Constable Lota did not give those rights immediately but he did provide them promptly. In my view, it would be wrong to describe the breach as anything more than minimal in these circumstances.

[36] In my opinion, with respect to the impact of the breach on the Defendant’s Charter-protected interests, the circumstances here do not favour exclusion, since he did speak to duty counsel before he provided his breath samples.

[37] The Supreme Court of Canada reaffirmed its importance of the right to counsel in R. v. Suberu 2009 SCC 33, [2009] 2 S.C.R. 460. At paragraph 40, the Court explained that it exists to:

Ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.

Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

[38] The impact of unlawfully seized breath samples due to a section 8 violation is minimally intrusive and its impact on the privacy and dignity of the individual is negligible. (See: R. v. Jennings, [2018] ONCA 260). Furthermore, in a section 10(b) breach the nexus between the breach and the collection of evidence can be negated by the ‘Charter-compliant’ consultation with counsel. (See: R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.) para 69 and 77-78). The Defendant did consult with duty counsel and presumably received and followed the advice of duty counsel.

[39] The impact of the Charter breach does not favour exclusion in the circumstances. The delay was very brief. Nothing consequential happened during that period of time. Being out on the side of the road there was no reasonable opportunity for the Defendant to call a lawyer even if he had received his rights the instant he was arrested and his custody was transferred over. The breath test procedures were minimally intrusive and did not undermine the privacy, bodily integrity, or basic human dignity of the Defendant.

[40] The third branch that I must consider is society's interest in the adjudication of the case on its merits. The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by the admission or exclusion of the evidence. The seriousness of the case, the reliability of the evidence and its importance to the prosecution are important factors. In R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 the Supreme Court of Canada highlighted the serious nature and potential consequences of impaired driving. I am also mindful of the fact that the seriousness of the offence ought not to take on disproportionate significance. (See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.) The breath samples are reliable, and no argument was made to the contrary. They are also of central importance to the Crown's case. This factor weighs in favour of admission.

[41] Therefore, the breath sample results and any further evidence gathered should not be excluded from the trial. There will be a finding of guilt on count #2 ‘drive with excess blood alcohol’.

Was the Defendant impaired by alcohol when driving?

[42] Any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384; aff'd (1994), 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.). 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: R. v. Censoni, [2001] O.J. No 5189 (S.C.J.) at para. 4; R. v. Michitsch, [2004] O.J. No. 1296 (S.C.J.).

[43] Upon assessing the evidence as a whole I am persuaded beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol. I found both Constable Haramis and Constable Holmes reliable and credible witnesses. Even if I excluded the breath tests of 170 milligrams of alcohol in 100 millilitres of blood respectively, on their observations alone I would have been persuaded beyond a reasonable doubt that the Defendant’s ability to operate a vehicle was slightly impaired. The breath test results only afforded some evidence that the Defendant had consumed alcohol prior to being stopped by Constable Haramis. (See: R. v. Dinelle, [1986] N.S.J. No. 246 (C.A.))

[44] In coming to the conclusion that the Defendant’s ability to drive was slightly impaired by alcohol I take the following facts into consideration from Constable Haramis’ testimony:

(1) While he approached the intersection of Camilla Road and The Queensway, Constable Haramis observed the Defendant’s vehicle “run a red light”. The vehicle crossed a solid yellow line on Camilla Road and failed to stop at the stop sign located at Camilla Road and Cherry Post Road.

(2) The Defendant’s eyes were blood shot, speech was slurred and slow.

(3) The Defendant appeared lethargic.

(4) Inside his cruiser, the defendant admitted to consuming his last drink at “12 o’clock”. He smelled alcohol on his breath. The defendant’s eyes were involuntarily jerking.

[45] Constable Holmes testified and I accept that he made the following observations while in the breath room:

(1) There was an odour of an alcoholic beverage on the Defendant’s breath.

(2) The Defendant’s eyes were blood shot and his speech was very slurred.

(3) Constable Holmes’ opinion was that the effects of alcohol on the Defendant were noticeable.

[46] Other factors that I placed very little weight on while examining the indicia of impairment was the “fumbling” of the stack of cards, as the Defendant tried to locate his driver’s licence. The fact that he fumbled his way through the stack of cards twice could have been easily attributed to nervousness rather than an equivocal sign of impairment. (See: R. v. Smith, [2001] O.J. No. 4760 (C.J.) I also placed no weight on Constable Haramis’ observation that the Defendant had a deliberate gait when he was escorted to the cruiser. The Constable did not observe any unsteadiness. This lack of indicia of impairment was corroborated by Constable Holmes’ evidence that there was no stumbling or any problem with the Defendant’s fine motor skills while in the breath room.

[47] Nevertheless this does not diminish the evidentiary value of the modest but real physical signs of impairment and the erratic driving that were observed. The cumulative effect of the observable facts clearly demonstrated poor judgment and diminished attention. Assessing the evidence as a whole, I am satisfied beyond a reasonable doubt that the Defendant’s ability to drive was impaired by alcohol.

[48] Therefore, there will be a finding of guilt on count #1.

Conclusion:

[49] For the reasons set out above, I am satisfied that the Crown has proven beyond a reasonable doubt the Defendant's guilt on both Count #1 (Impaired Driving) and Count #2 (Driving with Excess Blood Alcohol). Verdicts of guilty will be recorded on each count.

[50] Upon submissions from the prosecutor, a conviction will be registered on Count #1 (Impaired Driving) and a judicial stay is entered on Count #2 (Driving with Excess Blood Alcohol).

Released: January 21, 2019

Signed: Justice P.T. O’Marra