Court File and Parties

Court File No.: Hamilton 17-12652 Date: 2019-08-15 Ontario Court of Justice

Between: Her Majesty the Queen — and — William Meinzinger

Before: Justice J.P.P. Fiorucci

Heard on: November 1st and 2nd, 2018

Submissions made on: December 17th, 2018 and January 30th, 2019

Reasons for Judgment released on: August 15th, 2019

Counsel:

• S. Wollaston / A. Lepchuk, for the Crown
• B. Starkman, for the defendant William Meinzinger

FIORUCCI J.:

INTRODUCTION

[1] William Meinzinger was involved in a single motor vehicle collision. He does not dispute that he was the driver of the motor vehicle involved in the accident. Mr. Meinzinger received medical attention at the scene of the collision. He was then transported by ambulance to the hospital. A police officer followed the ambulance to the hospital.

[2] At the hospital, this police officer arrested Mr. Meinzinger for Impaired Operation and made a breath demand. The accused provided samples of his breath at the hospital. The breath readings exceeded the legal limit. Mr. Meinzinger was charged with Impaired Operation or Care or Control of a Motor Vehicle and Over 80. The alleged offence date is November 25th, 2017.

[3] Mr. Meinzinger entered not guilty pleas to both charges. At the trial, the Crown did not file a Certificate of Analysis of a Qualified Breath Technician or a printout of the breath readings. The qualified breath technician gave viva voce evidence. The breath technician was permitted to refer to his notes to refresh his memory regarding details of the investigation. The breath technician referred to his notes when he testified about the results of the breath samples taken from Mr. Meinzinger.

[4] On consent, a forensic toxicologist's report was filed for the truth of its contents. The report refers to the results of the breath testing and provides the projected blood alcohol concentration (BAC) of Mr. Meinzinger at or between approximately 12:50 a.m. and 1:10 a.m.. The projected range of BAC between those two times exceeded the legal limit.

[5] I must decide the following issues:

a. Is there admissible evidence of the breath readings before the Court? The Defence submits that the breath technician had no present recollection of the breath readings when he testified but relied exclusively on his notes to give that evidence. Since he was only granted permission to use his notes to "refresh his memory", and the Crown did not seek to admit the notes as "past recollection recorded", the Defence says there is no admissible evidence of the breath readings before the Court. The Crown submits that the breath technician's viva voce evidence regarding the breath test results is admissible and that it would be unfair to permit the accused to challenge the admissibility of this evidence in closing submissions.

b. Does the Forensic Toxicology Report establish that the accused's BAC at the time of operation or care or control was above the legal limit? The Defence submits that the Crown has not established that the time of operation or care or control was between approximately 12:50 a.m. and 1:10 a.m.. Therefore, the report of the forensic toxicologist which provides a projected BAC between those two times does not establish that the accused operated or had care or control of a motor vehicle while his BAC exceeded the legal limit.

c. If there is admissible evidence establishing the accused's BAC at the time of operation, were Mr. Meinzinger's section 8, 9 and 10(b) Charter rights infringed, requiring exclusion of the breath test results pursuant to section 24(2)? The accused asserts that the police arrested him for Impaired Operation and made a breath demand without reasonable and probable grounds. He also asserts that the police failed to provide him with resources to find private counsel rather than simply providing him with duty counsel as the only option.

d. Has the Crown proven the Impaired Operation or Care or Control charge beyond a reasonable doubt?

[6] The prosecution was conducted as a blended voir dire. I heard the evidence pertaining to the alleged Charter breaches blended with the evidence relating to the trial issues. Mr. Meinzinger gave evidence only on the Charter voir dire.

ANALYSIS AND ISSUES

Is there Admissible Evidence of the Breath Readings before the Court?

[7] P.C. Nelson Fiuza was the qualified breath technician who conducted Mr. Meinzinger's breath tests at the hospital. At the beginning of the examination-in-chief, Crown counsel asked P.C. Fiuza if he had prepared notes as part of the investigation. As soon as P.C. Fiuza responded that he had made notes in three places (his duty book, on the alcohol influence report, and in a will say statement), Defence counsel rose and stated, "I don't object to the officer refreshing his memory from his notes". P.C. Fiuza then confirmed that he had an independent recollection but required his notes to refresh his memory regarding certain details. P.C. Fiuza was given permission to refer to his notebook notes, will say statement and the alcohol influence report for this purpose, without objection from Defence counsel.

[8] P.C. Fiuza gave viva voce evidence that the first sample was provided by Mr. Meinzinger at 4:00 a.m. and resulted in a reading of 189 milligrams of alcohol per 100 millilitres of his blood. P.C. Fiuza testified that the second sample was provided at 4:21 a.m. and resulted in a reading of 178 milligrams of alcohol per 100 millilitres of his blood.

[9] During cross-examination, P.C. Fiuza agreed with Defence counsel's suggestion that his notes did not refresh any independent memory he had of the exact breath readings. He would not have been able to remember the exact readings obtained from Mr. Meinzinger without referring to his notes. The breath technician agreed that he relied upon what he had written in his notes to testify about Mr. Meinzinger's breath readings:

Q. Right. So in other words, the notes, the materials you relied upon don't refresh any memory you have of …the breath readings. You rely upon your materials as what must have been the breath readings otherwise you wouldn't have written it down. Do you agree with that suggestion?

A. The breath readings and the printout from the Intoxilyzer, yes sir.

[10] Defence counsel did not object to the admissibility of P.C. Fiuza's testimony about the breath readings when the evidence was tendered, nor did the Defence challenge its admissibility when P.C. Fiuza testified that he relied upon his notes to give this evidence.

[11] Defence counsel challenged the admissibility of this evidence in closing submissions. The Defence submits that the breath technician was only given permission to use his written materials to refresh his memory. Cross-examination revealed that P.C. Fiuza had no present memory of the breath readings which had been revived by his notes, but rather he relied exclusively on his notes to testify about the readings. The Defence submits that, in the circumstances, the Crown was required to satisfy the preconditions for admitting the evidence as past recollection recorded. As the Crown failed to do so, the Defence submits that there is no admissible evidence of the breath readings before the Court, which is fatal to the Over 80 prosecution.

[12] The Crown submits that it would be unfair to permit the accused to challenge the admissibility of the breath test results in closing submissions. Relying upon the Ontario Court of Appeal decision of R. v. Gundy, the Crown says that Defence counsel was required to make an objection to the admissibility of P.C. Fiuza's evidence regarding the breath readings at the time the evidence was tendered, not at the end of the case. In the alternative, the Crown contends that the preconditions for admitting the evidence as past recollection recorded have been met.

[13] In accordance with the principles laid out in Gundy, I reject the Defence position that the breath test evidence is inadmissible. The Defence failed to make timely objection to the admissibility of the evidence when it was tendered through P.C. Fiuza, and it is not in the interests of justice to permit counsel to challenge the admissibility of the evidence in closing submissions.

[14] In an Over 80 prosecution, the Crown may seek to prove the breath readings by the viva voce testimony of the breath technician, by Certificate of Analysis of a Qualified Breath Technician, or by a combination of the two forms of evidence. In this case, the only evidence of the breath readings tendered by the Crown was P.C. Fiuza's viva voce evidence.

[15] The Gundy decision, and other cases that have cited it, dealt with the admissibility of a Certificate of Analysis. I find that there is no policy basis to limit the applicability of the principles set out in Gundy to situations where the Crown seeks to prove the Over 80 charge by way of certificate evidence. The failure of the Defence to make a timely objection to the admissibility of the breath technician's viva voce evidence results in the same prejudice to the Crown. It deprives the Crown of the opportunity to lead other evidence relevant to the issue.

[16] In Gundy, the Defence challenged the admissibility of the Intoxilyzer results in closing submissions. At trial, the Defence had permitted the Crown to file the Certificate of a Qualified Technician showing the results of the breath tests. In addition, the Defence did not object to the breath technician referring to the results of the tests, nor did the Defence object to the admission of two subject test reports produced by the Intoxilyzer that showed the results of the tests. Furthermore, an affidavit of a forensic toxicologist which referred to the results of the tests was admitted into evidence. The Defence offered no objection to the admissibility of the results of the tests at the close of the Crown's case. The Defence called an expert toxicologist. In the course of the Defence toxicologist's evidence, Defence counsel referred him to the results of the Intoxilyzer tests.

[17] The Ontario Court of Appeal in Gundy found that the trial judge erred in permitting the Defence to challenge the admissibility of the certificate and the results of the Intoxilyzer test at the completion of the trial, during closing submissions. The Court of Appeal held that the objection to the admissibility of this evidence came too late.

[18] Rosenberg J.A. reiterated the Court's finding in R. v. Kutynec that an objection to the admissibility of evidence should be taken at the time the evidence is tendered:

Finlayson J.A. said this in R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at 294-95:

Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence: R. v. Myers (1984), 14 C.C.C. (3d) 82 at p. 91, 28 M.V.R. 144 (P.E.I.S.C. App. Div.); Tse, "Charter Remedies: Procedural Issues" (1989), 69 C.R. (3d) 129 at pp. 136-40.

Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative. [Emphasis added.]

[19] Rosenberg J.A. also cited the case of R. v. Enden, a drinking and driving case in which the Saskatchewan Court of Appeal held that an objection to the admissibility of breath sample evidence must be taken when the evidence is tendered. Permitting a challenge to admissibility "at the final argument stage of the trial would deprive the Crown of the opportunity to lead evidence relevant to the issue".

[20] Rosenberg J.A., again citing Kutynec, noted that a trial judge "has a discretion to allow counsel to challenge evidence already received". The judge "will do so where the interests of justice so warrant". For example, Rosenberg J.A. stated that a judge would exercise this discretion "if other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken".

[21] The Court of Appeal in Gundy made it clear that the failure of the Defence to make a timely objection to the admissibility of the test results, and the prejudice that flowed from it, related not only to the Charter issues that the Defence raised in closing submissions but "to all of the other objections to the admissibility of the Intoxilyzer results that were taken by counsel for the first time at the end of the case".

[22] In our case, Defence counsel for Mr. Meinzinger did not object to the admissibility of the breath readings when the Crown tendered that evidence through P.C. Fiuza's testimony. Defence counsel did not challenge the admissibility of the evidence after he received answers from P.C. Fiuza in cross-examination that made it clear that the breath technician required his notes to be able to communicate the exact readings to the Court. Furthermore, the Defence consented to the filing of the affidavit and report of the forensic toxicologist that refers to the results of the Intoxilyzer test. The Defence did not seek to cross-examine the forensic toxicologist on the contents of her affidavit and report.

[23] Defence counsel says that the Crown should have recognized that the only purpose of the cross-examination on the breath readings was to show that P.C. Fiuza's notes had not refreshed a present memory of the readings. Defence counsel submits that, at that point, it was incumbent on the Crown to do what it had to do to repair its case.

[24] I reject this Defence argument. Even if Crown counsel recognized that the purpose of this line of questioning was to expose P.C. Fiuza's lack of a present memory of the breath readings, it was not incumbent on the Crown to assume that the admissibility of P.C. Fiuza's testimony about the breath readings was now in issue. If the Defence intended to challenge the admissibility of that evidence after it had been received by the Court, Defence counsel was required to raise that challenge with the Crown and the Court, once counsel became aware of a change in his position regarding admissibility, or at the very least before the close of the Crown's case.

[25] In a trial, counsel often pursue lines of questioning that may assist in advancing a certain position or argument, but upon further reflection decide to abandon that position or argument. In Mr. Meinzinger's case, the mere fact that Defence counsel asked a brief set of questions about P.C. Fiuza's reliance on his notes to give evidence about the breath readings did not shift the onus to the Crown to recognize that the Defence was now challenging the admissibility of the evidence based on the distinction between present memory revived and past recollection recorded.

[26] In these circumstances, even if the distinction between present memory revived and past recollection recorded was in the mind of Crown counsel at the time Defence counsel asked those questions in cross-examination, the Crown was entitled to assume that the Defence was not contesting admissibility on that basis unless and until the Defence advised otherwise.

[27] For instance, the Crown might assume that the Defence was not pursuing any such challenge because the Defence knew full well, based on Crown disclosure provided, that the Crown would be able to prove the breath readings by other means such as filing the certificate or a printout of the readings, or by seeking to satisfy the preconditions for having the evidence admitted as past recollection recorded.

[28] Mr. Meinzinger's counsel consented to the admission of the affidavit and report of the forensic toxicologist which referred to the breath readings. This would provide another basis for Crown counsel to infer that the Defence was not contesting the admissibility of the breath readings on any basis other than the Charter relief the accused sought in the Charter notice filed in advance of the trial.

[29] The failure of Defence counsel to advise the Crown and the Court of his intention to challenge the admissibility of this evidence based on P.C. Fiuza having no present memory of the readings deprived the Crown of the opportunity to lead other evidence establishing the breath test results.

[30] Defence counsel argued that Crown counsel should have known the purpose of this line of questioning in cross-examination. Defence counsel obviously knew the purpose of his questions, which was to elicit answers that may permit him to make an argument regarding the admissibility of evidence at the end of the trial, without notice to the Crown or the Court.

[31] At this late stage, it is not in the interests of justice to permit the Defence to challenge the admissibility of the evidence based on the distinction between present memory revived and past recollection recorded. The law regarding the timing of objections to admissibility of evidence is well settled. A Defence trial strategy which runs counter to this established law should be discouraged. Objections to the admissibility of evidence are to be made at the time the evidence is tendered, or when "other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken".

[32] The orderly and fair operation of the criminal trial process would not be well served by requiring the Crown to envision, and call evidence to counter, every possible admissibility argument the Defence might make after the Crown has closed its case. This could result in longer criminal trials by the Crown leading additional or duplicitous evidence to address a perceived or potential Defence challenge to admissibility which might never arise.

[33] I recognize that this may not be as much of a concern in a case like Mr. Meinzinger's. In addition to having P.C. Fiuza testify about the results, the Crown could have filed the Certificate of Analysis of the Qualified Technician or the printout of the breath test results, without unduly lengthening the trial process.

[34] However, the rationale for requiring the Defence to give notice of its intention to challenge the admissibility of evidence makes good sense in the context of the challenge advanced by Defence counsel in this case.

[35] The police have a duty to prepare accurate, detailed and comprehensive notes as soon as possible after an event has been investigated. The Crown provides those notes to the Defence as part of the Stinchcombe disclosure process.

[36] It is common practice in criminal courts to permit police officers to refer to these notes for the purpose of "refreshing memory". Crown counsel will typically ask the police officer whether the notes were prepared at the time of the events in question or shortly thereafter. However, Defence counsel will often consent to the police officer refreshing his or her memory from notes prior to the Crown asking these questions, with little or no inquiry into when or how the notes were prepared.

[37] For instance, Defence counsel in this case consented to P.C. Fiuza using his notes to "refresh his memory" before Crown counsel had asked any questions about when and how P.C. Fiuza had prepared the notes or whether he had any independent recollection of the events in question. Prior to being permitted to use his notes, P.C. Fiuza did testify that he had an independent recollection but required his notes to refresh his memory regarding certain details.

[38] If the officer was truly using his notes to "refresh his memory", questions regarding who prepared the notes or when they were created would be irrelevant. The material used to refresh a witness's memory need not have been prepared or verified by the witness. As stated in McWilliams' Canadian Criminal Evidence, 5th Edition, "[n]or is it necessary that the document have been created at the time of the events in question or shortly thereafter".

[39] In R. v. Bengert, the British Columbia Court of Appeal noted the following regarding the use of notes to "refresh memory":

Many lawyers appear to be of the view that a witness may be permitted to refer to notes only if he made the notes reasonably contemporaneously with the event, or if someone else made the notes, he verified the accuracy of the notes when the events were reasonably contemporaneous in his mind. This is a misconception, (see Wigmore, Vol. 3, s. 758, p.125 and following).

[40] A witness who is truly being asked to use a document to revive his or her memory should review only that portion of the document that is relevant to refreshing the witness's memory. If the document assists in refreshing the memory of the witness, "counsel can ask the witness to relate the refreshed memory to the fact finder". However, the questions should be non-leading and "the witness should not review the document while answering."

[41] The authors of McWilliams' Canadian Criminal Evidence, 5th Edition state, "[i]f the ensuing examination or cross-examination belies the witness's assertion, and clearly demonstrates that he or she in fact has no recollection of part or all of the events, the testimony should to that extent be ruled inadmissible." However, the evidence may still be admissible if it meets the requirements for past recollection recorded.

[42] Where the witness giving testimony is a police officer, "the dividing line between 'refreshing memory' and reciting from notes can become exceptionally thin". On a daily basis, in criminal courts, we all participate in a "legal fiction" when it comes to the evidence of police officers.

[43] Police officers take the stand and are immediately asked whether they made notes and whether they wish to refer to their notes to "refresh their memory". Once permission is granted, usually without objection from Defence counsel, the officer gives his or her evidence with notes in hand.

[44] At times during the testimony, the police officer will refer to the notes to answer questions, often reading directly from the notes. For instance, the police officer may recite a detail such as a licence plate or, as in our case, a breath reading, directly from the notes.

[45] It would be impossible for the officer to remember these details without the notes. Hence the duty imposed upon police officers to create accurate, detailed and comprehensive notes. Again, opposing counsel usually does not object to the police officer reading in those portions of his or her notes that pertain to details which would be difficult to recall after many months have passed. All this is done under the guise of "present memory revived or refreshed".

[46] However, in reality those portions of the police officer's testimony that are comprised of the officer reading details into the court record which have been recorded in his or her notes and are not in the officer's present memory constitute "past recollection recorded". Often times, as in this case, those details are read into the court record without the Crown having asked the qualifying questions to satisfy the preconditions for "past recollection recorded". However, without an objection from Defence counsel, the trial proceeds and the evidence is admitted and considered together with the other evidence given by the police officer.

[47] In R. v. Mitchelmore, Gorman J. explained the reality of police officers giving evidence with the assistance of notes:

Many authorities refer to the distinction between "past recollection recorded" and "present recollection revived." Though this distinction may be useful at times, it is not a distinction which can always be easily drawn when applied to the testimony of police officers. Because of the nature of their work, the taking of accurate and timely notes by police officers is crucial. Though police officers are routinely allowed to refer to their notes to "refresh their memory", the reality is that because of the number of incidents they are involved in and the number of times they are required to testify, often long after the incident occurred, they will at times have little or no recollection of the event in issue. Thus, their notes are not used to refresh their memory, rather, they constitute the memory.

[48] Defence counsel for Mr. Meinzinger relies on the decision of the Supreme Court of Canada in R. v. Fliss to support his position. In Fliss, the accused was charged with murder. He confessed to an undercover police officer. The trial judge excluded the electronic surveillance tape that contained the recording of the confession and the transcript of the recording pursuant to section 24(2) of the Charter because the electronic surveillance had not been properly authorized.

[49] One of the transcripts that was excluded pursuant to the Charter violation was of a conversation that had taken place between the accused and the undercover officer on January 29th, 1997. The undercover officer had reviewed the transcript on January 30th, 1997 and made corrections to the transcript based on listening to the tape, supplemented with his recollection of the conversation.

[50] After the Charter ruling, the accused "moved to suppress the evidence of the undercover police officer because he said it was inextricably bound up with the transcripts of the tapes that had been ruled inadmissible". The trial judge ruled that the officer could give evidence as to his present recollection of the January 29th conversation and could use the corrected transcript to "refresh his memory".

[51] When the officer was testifying on the stand, "the officer's evidence followed closely, often word for word, the corrected transcript of the January 29th conversation". The trial judge found that the officer had created a corrected transcript that could properly be described as his notes. Unfortunately, what followed was "basically a recitation" of the 34-page transcript to the jury.

[52] What is clear from Fliss is that the Defence challenged the admissibility of the undercover officer's evidence pertaining to the confession. The Defence also disputed the manner in which the police officer should be permitted to use the corrected transcript when giving his evidence.

[53] Fliss is not a case where the Defence consented to the police officer using his notes to refresh his memory, permitted the officer to give evidence with the assistance of those notes, and then argued at the conclusion of the trial after all of the evidence had been received that the notes had been used for an improper purpose. In Fliss, the Defence contested admissibility, a voir dire was held, and the trial judge ruled on what use the police officer could make of the impugned transcript while testifying.

[54] That is not what occurred in Mr. Meinzinger's case. Past recollection recorded is an admissibility issue. If at some point, the Defence decided to challenge the admissibility of P.C. Fiuza's evidence about the breath readings on the basis that his notes were being used as past recollection recorded, the Crown was entitled to a voir dire on the issue. Put another way, if the Defence was no longer willing to participate in the "legal fiction" that the notes were refreshing the police officer's memory, the Defence had to give notice of same.

[55] In the voir dire, the Crown would ask questions relevant to the preconditions for admissibility of the evidence as past recollection recorded. The Crown was deprived of the opportunity to establish the preconditions for admissibility because it was led to believe that the breath reading evidence was being received, without objection, and would be considered along with the other evidence given by P.C. Fiuza.

[56] The Crown would have every reason to believe that the evidence was being received without objection because the Defence consented to P.C. Fiuza using his notes to "refresh his memory" and took no issue with the officer using those notes to provide the most critical piece of evidence he had to give, the results of the breath tests.

[57] It would be unfair to permit the Defence to contest admissibility of this evidence, at this late stage, on the basis that this evidence was more properly characterized as "past recollection recorded" rather than "present memory revived". If a legitimate concern arose during the trial regarding the reliability of P.C. Fiuza's notation of the breath test results, that concern should have been addressed by way of an admissibility voir dire during the course of the trial, not at the conclusion in closing submissions.

[58] The Crown is entitled to have P.C. Fiuza's evidence regarding the results of the breath tests considered in determining the guilt of the accused.

Does the Forensic Toxicology Report Establish the Accused's BAC at the Time of Operation or Care or Control?

[59] The Crown must prove beyond a reasonable doubt that Mr. Meinzinger operated or had the care or control of a motor vehicle while his BAC exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[60] The Crown relies on the report of Elizabeth Hird, a toxicologist with the Centre of Forensic Sciences. The report was filed on consent for the truth of its contents. For some reason, the toxicologist was told to assume that the time of driving, or care or control, was between 12:50 a.m. and 1:10 a.m.. She based her calculations on those times. Based on the Intoxilyzer 8000C test results, Ms. Hird states that Mr. Meinzinger's BAC at or between approximately 12:50 a.m. and 1:10 a.m. is 180 to 240 milligrams of alcohol in 100 millilitres of blood.

[61] Having considered all the evidence in this case, I am unable to determine the time of the collision or the time at which Mr. Meinzinger was in care or control of the motor vehicle.

[62] Ms. Dorothy Kemp testified that she was in her home when she heard three big thumps outside. She did not testify as to what time she heard the thumps. Ms. Kemp looked out her back door and saw the headlights of a vehicle. She went to the road allowance and looked down to see that a vehicle had driven into some trees and bushes. She ran inside, got her phone and dialled 911. There was no evidence tendered to establish the time at which Ms. Kemp made the call to 911.

[63] Ms. Kemp then went down to where the vehicle had crashed into the bushes. Ms. Kemp estimated that one to one and a half minutes elapsed between the time she heard the thumps and the time she went to the vehicle.

[64] When Ms. Kemp arrived in the area where the vehicle had crashed, Mr. Meinzinger was still inside the vehicle. Ms. Kemp called out to him, at the behest of the 911 call taker, to determine if there was more than one person in the car. She eventually received a response from Mr. Meinzinger that he was the only one in the vehicle. Ms. Kemp saw Mr. Meinzinger get out of the vehicle and stumble around. At one point, he got back into the front seat and was playing with the lights and turned the windshield washer on. No times were given by Ms. Kemp for any of these observations. Ms. Kemp stayed on the phone with 911 until the police arrived. Ms. Kemp did not give any evidence about how long after the collision the police arrived, or how much time elapsed between the time she last saw Mr. Meinzinger inside the vehicle and the arrival of the police.

[65] P.C. Jason Henry was dispatched to the area at 1:07 a.m.. P.C. Henry arrived on scene at 1:25 a.m.. By the time P.C. Henry arrived on scene, Mr. Meinzinger was already inside the ambulance.

[66] P.C. Douglas Moon was dispatched to the motor vehicle collision at about 1:10 a.m. according to his witness statement which was filed on consent. There is no evidence as to what time P.C. Moon arrived on scene. However, when P.C. Moon arrived, he was advised that the lone occupant of the vehicle was being attended to in the back of an ambulance.

[67] There is a complete absence of evidence regarding the time at which Mr. Meinzinger was operating or was in care or control of the motor vehicle. What is known is that Ms. Kemp likely called 911 one to one and a half minutes after the collision. The time of collision cannot be established without evidence of the time of the 911 call.

[68] Furthermore, on the evidence of Ms. Kemp, Mr. Meinzinger continued in care or control of the motor vehicle in the aftermath of the collision. However, no evidence was led regarding how long he remained in care or control. When P.C. Henry arrived on scene at 1:25 a.m., Mr. Meinzinger was not in care or control.

[69] The time at which P.C. Henry was dispatched, 1:07 a.m., is of no assistance to establishing the time of operation or care or control. No evidence was tendered regarding how much time elapsed between Ms. Kemp making her call to 911 and the dispatch time of 1:07 a.m..

[70] The 911 system is established to provide "effective and immediate assistance to citizens in need". This is especially so in cases where there is the potential for serious injury. The Crown submits that it would be unreasonable to speculate that the 911 system took longer than 17 minutes to dispatch police to the scene, and that therefore, it is reasonable to infer that the time of driving was in the window used by the forensic toxicologist, starting at 12:50 a.m..

[71] On the contrary, it would be impermissible for me to speculate that P.C. Henry was dispatched to the scene within 17 minutes of Mr. Meinzinger's operation or care or control of the motor vehicle without a proper evidentiary foundation. The Crown has failed to prove beyond a reasonable doubt that Mr. Meinzinger operated or was in care or control of a motor vehicle between 12:50 a.m. and 1:10 a.m. with a BAC in excess of the legal limit. Mr. Meinzinger will be found not guilty of the Over 80 charge.

The Charter Application

[72] Mr. Meinzinger asserted Charter infringements and sought exclusion of the breath readings pursuant to section 24(2). The admissible evidence in this case does not establish that Mr. Meinzinger's BAC at the time of operation or care or control exceeded the legal limit. Therefore, I do not find it necessary to deal with the issues raised in the Charter application.

Impaired Operation or Care or Control

[73] I make no finding as to Mr. Meinzinger's BAC at the time of driving or care or control for the reasons outlined above. Therefore, the opinion contained in the forensic toxicology report of Ms. Hird regarding impairment, based on the projected BAC, is unavailable to assist the Crown as evidence on the Impaired count.

[74] What the Crown is required to establish beyond a reasonable doubt is some degree of impairment to operate or have the care or control of a motor vehicle, from slight to great at the time of operation.

[75] A trial judge must consider the cumulative effect of all the evidence as it relates to the issue of whether a driver's ability to operate a motor vehicle was impaired by alcohol. A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent.

[76] The totality of the circumstances must be considered. The question is not whether there are other possible explanations for individual circumstances, but whether the evidence, taken as a whole, leads to only one reasonable conclusion, that the accused committed the offence of impaired operation.

[77] Having considered the totality of the evidence, I am left in a state of reasonable doubt as to whether Mr. Meinzinger committed the offence of operating or having care or control of a motor vehicle while his ability to do so was impaired by alcohol. I find that the evidence is "reasonably capable of supporting two competing interpretations".

[78] The one interpretation would be that Mr. Meinzinger consumed alcohol to the point of impairment and his impairment by alcohol was the cause of him leaving the roadway and being involved in the single motor vehicle collision. On this interpretation, the indicia of impairment exhibited by Mr. Meinzinger were the result of his consumption of alcohol. The indicia of impairment include Ms. Kemp's observations of him stumbling and falling down, and being unresponsive to her questions, and P.C. Henry's observations of Mr. Meinzinger's slurred, apparently non-sensical and repetitive utterances at the hospital, as well as his loud talking and laughing, and the smell of an alcoholic beverage in the area. On this interpretation, P.C. Fiuza's observations of a slight to moderate slur, glassy, watery and very red eyes, together with a moderate to strong odour of alcohol which got stronger when P.C. Fiuza got closer to the accused are also indicators of Mr. Meinzinger's impairment by alcohol.

[79] An alternative interpretation is that Mr. Meinzinger consumed some alcohol that night, and possibly some marihuana, but was not impaired. Ms. Kemp testified that over the years accidents happened very often in this area. On this interpretation, Mr. Meinzinger left the roadway because he failed to make a turn in an area that is notorious for motor vehicle collisions of the type he was involved in. The indicia of impairment he exhibited are consistent with the effects of the accident and the injuries he suffered. Ms. Kemp, who witnessed the aftermath of the accident, feared that Mr. Meinzinger may have hit his head and, at the hospital P.C. Henry noted bruising to his forehead. Mr. Meinzinger was stumbling and falling down when he got out of the vehicle because of the brush and broken trees in the area, and because of the effects of the significant motor vehicle accident. The slurring of speech and other utterances at the hospital are also consistent with someone involved in a significant motor vehicle accident. At the hospital, P.C. Fiuza noted that Mr. Meinzinger was on a backboard with a neck brace on, but he was polite, cooperative and his demeanour was fine. The moderate to strong odour of alcohol noted by P.C. Fiuza is indicative of alcohol consumption but "the intensity or degree of an alcohol odour is not one of the factors ordinarily, notoriously, or as a matter of common sense capable of being considered as establishing the relative amount or degree of alcohol intake or impairment to drive or have lawful care or control of a vehicle".

[80] All of the circumstances of the accused's conduct, viewed objectively, must be consistent only with impairment and inconsistent with some other explanation in order for there to be a finding of guilt on the criminal standard of proof. After weighing all the admissible evidence, I am not sure whether Mr. Meinzinger's ability to operate or have the care or control of a motor vehicle was impaired by the consumption of alcohol at the time he operated or had care or control of the vehicle. Therefore, I must find him not guilty of the charge.

CONCLUSION

[81] I find Mr. Meinzinger not guilty of the charges of Over 80 and Impaired Operation or Care or Control of a Motor Vehicle.

Released: August 15, 2019

Signed: Justice J.P.P. Fiorucci