R. v. Codner-Bourne

Court Information

Ontario Court of Justice

Date: July 19, 2019

Court File No.: 18-15001621-00

Toronto – Old City Hall

Parties

Between:

Her Majesty the Queen

— And —

Alexander Codner-Bourne

Before: Justice H. Pringle

Heard on: April 23-24, 2019; June 4, 2019

Reasons for Judgment released on: July 19, 2019

Counsel

Tom Goddard — counsel for the Crown

Patrick Metzler — counsel for the defendant

PRINGLE J.:

OVERVIEW

[1] Mr. Codner-Bourne is charged with having, on March 3, 2018, driven his motor vehicle while impaired by alcohol. The Crown has given ample advance notice that he would be relying on the included offence of impaired by alcohol while in care and control of a motor vehicle. The issues argued at trial were, under the Charter, grounds to arrest and rights to counsel, and on the trial proper, whether the Crown had met its burden of proof beyond a reasonable doubt.

REVIEW OF THE OFFICERS' TESTIMONY ABOUT ARREST

[2] Beginning with a brief review of the viva voce evidence, the two arresting officers were PC Benevides and PC Armstrong. They responded to a radio call made at 2:42 am on March 3rd, which had directed them to look for a possible impaired driver on Spadina. They were told the vehicle was running and stopped in a southbound Spadina lane. The driver was reported breathing but unconscious.

[3] Civilians were still on scene when police arrived at 2:54 am. They did not testify at trial, so any information provided to police, from them, was available only to assess reasonable grounds for arrest. The car, a BMW, was stopped in the middle lane of Spadina just north of Front Street. It was a busy area, with lots of traffic and pedestrians about. People at the driver's side flagged over the officers, advising the driver was "out cold".

[4] PC Benevides went over to the driver's side of the BMW. Inside was the defendant, Mr. Codner-Bourne. He was asleep, breathing heavily, eyes closed, and did not appear to be in medical distress. The vehicle was running and there was no damage to it. Mr. Codner-Bourne had a cell phone in his outstretched right hand. PC Benevides could not recall whether the other hand was on the steering wheel or not. The driver's seat was in driving position, as opposed to being reclined back. The car was still running, although PC Benevides could not recall if it was in park or in a driving gear. PC Armstrong believed the car had still been in drive and that the defendant's foot had been on the brake.

[5] The officers turned the audio on their microphones before embarking on an impaired driving investigation. In this decision, I have reviewed the audio and video footage separately from the officers' viva voce evidence, since there were some differences in detail and chronology.

[6] After some effort, the officers woke the defendant up and PC Benevides smelled a strong smell of alcohol coming from his breath. His escort, meanwhile, reached into the car from the passenger side to remove the keys from the ignition and similarly detected a strong smell of alcohol. The defendant was the car's sole occupant. There were no alcohol containers visible in the car.

[7] Mr. Codner-Bourne woke up, eyes fully bloodshot, looked at PC Benevides, looked forward, and then went back to sleep. PC Benevides testified that he shook him and said "you are blocking traffic". Mr. Codner-Bourne smiled, replied "you are blocking traffic" and fell asleep again.

[8] PC Benevides woke him up again, and according to his testimony, at this stage asked the defendant how much he had had to drink. The defendant replied that he had one drink at a club in the nearby Entertainment District. PC Benevides believed the defendant's ability to drive was impaired by alcohol, and asked the defendant to step out of the car. The defendant smiled again and said "okay". He stepped out of the car and, at 2:59 am, was placed under arrest for impaired driving.

[9] The defendant was informed of his rights to counsel by Cst. Armstrong. Again, because this exchange was captured on the scout car video, I will review the specifics of this conversation separately from my review of the officers' viva voce testimony. But here I should add that PC Armstrong neither testified to, nor noted down, seeing anything unusual about the defendant's eyes that would support grounds to arrest.

[10] After rights to counsel were provided, Cst. Armstrong erroneously read a screening device demand to the defendant. Cst. Benevides, who was present during the arrest, right to counsel, and breath demand, did not notice this error. The officers had, of course, arrested the defendant for impaired driving and were about to drive him to Traffic Services for a breathalyzer test. It is uncontroversial that the wrong demand was read to the defendant and the Crown chose, correctly, not to rely on evidence of the defendant's breath sample results.

[11] A field search was done, the defendant was advised of the reason for arrest, and the defendant was transported to Traffic Services and paraded before a booking sergeant. Cst. Benevides had limited dealings with the defendant after arriving at Traffic Services and parading the defendant. According to him, from observing the defendant's behaviour while at Traffic Services, he testified that he remained of the opinion that the defendant was impaired by alcohol.

REVIEW OF THE SCOUT CAR VIDEO

[12] At some point shortly after arriving on scene, the officers turned their scout car video on, and thus their interactions with the defendant were captured on either video, audio, or both. Aspects of the audio were quite difficult to hear, and in addition to reviewing the transcript helpfully provided by Mr. Metzler, I listened to the audio several times myself.

[13] I have chosen to summarize the video and audio evidence separately from that of the police officers' testimony. At times, both officers' versions varied from what was seen on video. Details were sometimes different. For example, PC Armstrong's notes had the right to counsel, arrest and cuffing happening after the defendant was walked over to their scout car. The video showed that cuffing the defendant, against his own car, was the very first thing the officers did the moment the defendant exited his own car.

[14] Chronology was also sometimes different. For example, Cst. Benevides' conversation with the defendant about how much he had to drink purportedly happened while the defendant was still inside his car, and formed part of his grounds to arrest then. When I reviewed the scout car video, I saw that conversation happening outside the scout car, after the defendant was handcuffed but before he was placed under arrest.

[15] I also found Cst. Benevides' opinion, that the defendant's later behaviour at Traffic Services continued to support the conclusion of impairment, incongruous with the video footage of the defendant's speech, gait, gross motor skills and fine motor skills during his arrest, booking, and breath testing process. Where the police testimony varied from what I observed on video, I have preferred the video as the more reliable form of evidence.

[16] The scout car video footage began with a view of the rear of the defendant's car, at 2:56:15. The car was stopped on Spadina Avenue in a live lane of traffic, approx. five to six car lengths away from a traffic light at the intersection of Spadina and Front Street. Traffic around it was heavy. When the traffic light at Front turned from green to red, the queue of cars waiting for the next light change sometimes extended as far north as the defendant's car. One inference available here was that the defendant fell asleep while stopped and waiting for a light change.

[17] The officers approached the defendant's car, one on each side looking in, and spoke to each other briefly. Cst. Benevides, consistent with his testimony that he closed an ajar door, opened and closed the driver's side door without going inside.

[18] After initiating audio function on their microphones, both officers went to the driver's side of defendant's car. Cst. Benevides opened the driver's side door at 2:57:00. There was brief and inaudible conversation between the officers. Cst. Armstrong moved over to the passenger side and asked Cst. Benevides to unlock the door. He did so. He had been leaning into the interior of the car. At 2:57:23, about ½ of his body was fully inside the car and a voice, presumably his, said "get up". Cst. Armstrong, still at the passenger side, then said, "Can you grab the keys". Benevides leaned in further and Armstrong got into the car from the passenger side. What they did inside was not visible, but at 2:57:34 the car's rear lights went out, and it appears consistent with Cst. Armstrong's testimony that he removed the keys in case the driver was startled into stepping on the gas.

[19] Cst. Armstrong exited the passenger side but Cst. Benevides continued to lean into the car. The defendant's head can be seen going up a bit and then back down. At 2:57:55, there was an inaudible conversation which ended with one voice saying, "….traffic you know that?" and at 2:58:08 a voice replied "You're traffic".

[20] Twelve seconds later, one of the officers directed the defendant to "Step out guy" or words to that effect, and the defendant replied "Yeah". Nine seconds after receiving this direction (at 2:58:29) the defendant has stepped out, himself, from the car. While Cst. Armstrong did use a hand to help him out, I concluded that the defendant was clearly exiting the car of his own volition and manpower, as opposed to being taken out physically. The hand Cst. Armstrong placed on him appeared to be a motion to assume control in a detention. Once the defendant was outside of his car, he was immediately handcuffed to the rear.

[21] Some conversation, largely inaudible, took place outside the car after the defendant was cuffed. Here, I relied on the transcript prepared but also discerned some additional conversation, upon my own review. One officer, I believe Cst. Benevides., asked the defendant "You alright?" The defendant replied "Yes". He was told that police were called about an unconscious male driver, and made an inaudible reply. Cst. Benevides then informed him that "You were sleeping in the middle of a lane. I can smell alcohol on your breath. Have you been drinking tonight"? The answer was inaudible. Cst. Benevides asked, "How much have you had to drink tonight?" and the defendant replied "One drink", with the rest of his answer being inaudible.

[22] Cst. Armstrong then informed the defendant he was under arrest for impaired operation. He was advised of his rights to counsel, using the standard memobook wording, and subjected to a breath demand:

Cst. Armstrong: It's my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You have the right to free legal advice from a legal aid lawyer. If you are charged with an offence you can apply to the Ontario Legal Aid Plan for assistance that's 1 800 265 0451 That's a number that will put you in contact with a free lawyer okay? So it's free.

Defendant: Is there any way I could get these off, the handcuffs?

Cst. Armstrong: You understand?

Defendant: Yes.

Cst. Armstrong: I'm going to read something else to you, okay?

Defendant: Okay. I just want you to know I didn't do anything sir. I didn't drink or anything like that, nothing.

Cst. Armstrong: I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made. Now you accompany me for that purpose of taking that sample. Do you understand?

Defendant: Yeah.

Cst. Armstrong: Okay.

Defendant: Screening device, roadside, I didn't get that. I'm just asking.

[23] Initially, from the conversation that followed, the defendant did not appear to understand that he had been asleep in his car while stopped in a live lane of traffic. Although his speech revealed no typical indicia of impairment, such as slurring, at this point in the evidence the content of this conversation showed the defendant to be quite confused about what had just happened.

[24] This confusion ended, however, relatively quickly. The defendant began to inquire whether he would make it to work in the morning and what was going to happen next. This last inquiry received no answer from police. The defendant attempted, a few more times, to get a response to this, repeating "Excuse me" and "Am I allowed to ask a question" politely and without slurring or other speech aberration.

[25] After a brief uneventful car ride to Traffic Services, the defendant asked, again, "Excuse me? Is there any way you can tell me what is going to happen to me tonight?" This time, police responded with a bit more detail about the breath process and getting charged. The defendant continued to ask relevant questions about the process, such as what will happen to his car, about the 90-day licence suspension, and repeatedly about whether and how he would be able to get to work in the morning. He provided his name, clearly, and spelled it upon request. He gave his phone number, clearly upon request. During all this conversation, the defendant's speech remained normal, his questions remained relevant to the situation, and his tone remained polite.

[26] The defendant was brought into the booking hall by Cst. Armstrong and Cst. Benevides. Cst. Armstrong began the booking process by reading an incorrect notice, one dealing with police handheld radios, to the defendant. After being corrected by the booking sergeant, Cst. Armstrong read the defendant a videotape caution and then the informational component to his rights to counsel again. After completing the rights to counsel, Cst. Armstrong said, "Okay?" and the defendant replied "Okay."

[27] The defendant was then taken directly to the booking sergeant and introduced. Cst. Armstrong informed the sergeant of the reason for arrest, that the defendant had been advised of rights to counsel, that the defendant understood them, and that the defendant had been told he could make reasonable use of the phone while at the station. Cst. Armstrong, incorrectly, said a breath demand was made of the defendant. The booking sergeant, Sgt. Pavlidis, confirmed the defendant understood the reason for his arrest and then the following conversation transpired:

Q. And you understand your rights to counsel, to speak to a lawyer?

A. Yes.

Q. Do you have a lawyer that of your own or did you want to speak to duty counsel?

A. Ah, no. I'm okay.

Q. "You're okay". You don't want to speak to any lawyer at all?

A. Does it help me at all, or?

Q. That's not up to me whether it helps you or not. Some people want to speak to a lawyer, some people don't.

A. (inaudible brief response and appears to shake head slightly)

Q. Okay. And while you're in our custody you will have reasonable use of a telephone. Okay?

A. Okay. I have to work in the morning, is that an issue?

[28] I must note here that my conclusions on this conversation were based not just on the transcript, but of my review of the video and audio footage of the exchange between the two. I should also add that the booking sergeant testified for the defence. Her testimony was brief and primarily focused on the issue of rights to counsel. She said that when the defendant said "Ah no, I'm okay" in response to being asked if he wanted to call a specific lawyer or to speak to duty counsel, she interpreted that as the defendant declining to speak to any counsel. His question afterwards, "Does it help me at all?" was not interpreted, by her, as equivocation.

[29] Their conversation then moved to the defendant's morning work obligations, which continued to be a pressing concern for him. He was asked for general biographical information such as date of birth, age, potential mental and physical health issues, and about whether he had consumed alcohol or drugs that night to any unusual extent. The booking sergeant qualified the latter request by explaining that these specific questions were being asked only to assess potential medical problems. The defendant's answers, every single time, remained responsive to each question asked. His tone was consistently polite. At no time did his speech appear to be slurred, or too quick, or too slow.

[30] The defendant then removed items of his personal property. He took off his earrings, one from each ear, and placed each earring back inside its backing. He also took off a watch, a necklace, and his boots. At no point did the defendant's fine motor skills appear to be anything other than normal. For the most part, his gross motor skills appeared to be entirely normal as well. While the defendant swayed a bit while taking off his boots, this sway only occurred when he was removing his second boot, while still standing up, and while still handcuffed to the rear.

TESTIMONY OF THE BREATH TECHNICIAN

[31] Det. Simakov, the breath technician, testified in a manner entirely consistent with the breath room video. His credibility and reliability were not challenged, an approach I agree with in my own assessment of this officer's evidence. While the Crown did not rely on the breath readings obtained, this officer testified as to his physical observations of the defendant while in the breath room. More particularly, he said:

• There was a smell of alcohol from the defendant, which was neither weak nor overly strong;
• The defendant's eyes were bloodshot and watery. He reported wearing contact lenses, as per a condition Det. Simakov noted on was on his driver's licence;
• The defendant was polite, co-operative, and at some point crying[1];
• The defendant's eyes were not glassy, droopy, or unable to focus;
• Nothing unusual about his gait was noticed when entering the room for the first test;
• When the defendant entered the room for the second test, he was "a bit" unsteady coming into the room while being walked in by Cst. Armstrong;
• There was nothing unusual about the defendant's appearance, his clothing, or his skin tone;
• There was nothing unusual noted about the defendant's speech;
• There was nothing unusual noted about the defendant's fine motor skills;
• The defendant was able to understand and follow instructions.

[32] The overall effects of alcohol were "noticeable", Cst. Simakov concluded. This ruled out both "slight" and "obvious" effects of alcohol. When asked, in chief, to disabuse himself from the readings and provide an opinion on impairment, Cst. Simakov opined that the defendant's ability to drive a motor vehicle was impaired.

[33] When the defendant met Cst. Simakov, the officer confirmed he understood why he was there, and re-visited whether the defendant wished to contact a lawyer or not:

Q. Now I understand that you declined to speak to a lawyer. Is that correct?

A. Yeah.

Q. Now I want to make sure you understand that you can change your mind at any time during this process.

A. Doesn't make a difference (slight shake of the head).[2]

Q. Well it's your right and we have to make sure that you have the ability to exercise that right…

A. Inaudible.

Q. …if you want to. I'm just saying if you change your mind please let myself or the other officers know and we'll put you in contact with a duty counsel at the very least.

A. Okay. (nodding).

[34] At the outset of the second test, Cst. Simakov again re-visited the topic of counsel:

Q. I gotta re-visit the lawyer issue. Are you still content with not speaking to one, or do you want to speak to a lawyer?

A. No not really it doesn't make a difference I guess.

Q. So that's a no?

A. No.

Q. Okay. Again you can change your mind at any time during this process.

[35] The video and audiotaped footage, and the testimony of all police officers, was admissible across both Charter voir dire and trial. The defendant did not testify on the voir dire or on the trial proper.

CHARTER ISSUES RAISED – SECTION 8

[36] The first Charter issue advanced was under s. 8, with the argument being that the defendant was arrested absent reasonable grounds and causing ss. 8 and 9 breaches. In sum, the defendant argued the arresting officer may have had a reasonable suspicion but no more. Perhaps Cst. Armstrong's mistake in reading the approved screening device demand, instead of the approved instrument demand, was an ironic slip. This evidence took any reasonable analysis no further than the threshold of reasonable suspicion. Respectfully, I disagree. The officers had reasonable grounds to arrest Mr. Codner-Bourne.

[37] The reasonable grounds threshold is no more than an objectively reasonable belief "that the driver committed the offence of impaired driving or driving 'over .08' before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation": R. v. Shepherd, 2009 SCC 35 at para. 23. He need only believe, reasonably, that the defendant's ability to drive was even slightly impaired by alcohol consumption: see R. v. Bush, 2010 ONCA 554 at para. 48.

[38] In assessing whether they have grounds to arrest, police officers are entitled to take into account hearsay information they may have. Here, the information received from radio dispatch, and from the civilians on scene, could properly play a part in the arresting officer's analysis: R. v. Censoni, [2001] O.J. No. 5189 (S.C.) at para. 57. So, too, could the defendant's admission to alcohol consumption: R. v. Orbanski, 2005 SCC 37 at paras. 58-59. Impairment need not be the only reasonable conclusion available from the facts, it must just be a reasonable one.

[39] The indicia of impairment that justified the arrest was the stopped position of the car in a live lane of traffic, the hearsay fact that the defendant had been "out cold", the hearsay fact that the defendant had been asleep in that spot for at least 14 minutes prior to police arrival, the fact that the defendant briefly fell back asleep when police tried to wake him, the smell of alcohol coming from the defendant's breath, and his bloodshot eyes. I drew nothing from the fact that PC Benevides observed red bloodshot eyes and PC Armstrong did not. Quite frankly, PC Benevides struck me as a much more reliable historian than Cst. Armstrong.

[40] I appreciate that once Mr. Codner-Bourne was woken up and stepped out of the car, the officers observed no additional indicia of impairment, when it came to his fine motor skills, his balance, and his speech. But as Rouleau J.A. held in R. v. Wang, 2010 ONCA 435 at para. 21:

The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, were not present does not render the officer's subjective belief, based on the signs he did observe, objectively unreasonable.

[41] In addition, once out of the car, the defendant exhibited confusion, albeit brief, and seemed not to understand that he had been sleeping behind the wheel in a live lane of traffic. One obvious conclusion for this confusion, for the smell of alcohol, for the falling asleep while in control of a motor vehicle, for the bloodshot eyes, for the admission of alcohol consumption, was that Mr. Codner-Bourne's ability to drive a motor vehicle was impaired by alcohol. Cst. Benevides' decision to arrest the defendant for impaired driving was solidly founded on the information available to him.

CHARTER ISSUE RAISED – SECTION 10(b)

[42] The defendant also argued that s. 10(b) of the Charter was breached. Here, Mr. Metzler submitted that the defendant was not properly informed of his right to counsel, was not given the information he needed in order to implement his right to counsel, and that the defendant's equivocal responses during booking fell well short of an informed waiver of his right to counsel.

[43] Respectfully, I have found no section 10(b) breach here, either. Looking first at the informational component to assess it for deficiency, at the roadside, Mr. Codner-Bourne was given the standard memobook caution which included information about his "right to retain and instruct counsel without delay", the right to free legal advice, and information about applying to OLAP for assistance. While being booked at Traffic Services, the arresting officer read the informational component of rights to counsel, again, from a notice on the wall. So again, the defendant was told about his right to retain and instruct counsel without delay, the right to free legal advice, and information about applying to OLAP for assistance.

[44] Thus even before the defendant engaged with the booking sergeant, the information provided to him squarely met the salient elements of the s. 10(b) informational component. As per Doherty J.A., in R. v. Devries, 2009 ONCA 477, at para. 36, satisfaction of the informational component is "measured by its ability to convey the essential character of the s. 10(b) rights to the detainee – the right to immediate access to a lawyer, including access through the toll-free number to immediate free legal advice. It is this overall message, and not the individual words, that matter here.

[45] This message was well communicated to the defendant by the memobook rights read to him at roadside and the notice read to him before booking began. Then, the booking Sergeant confirmed the defendant understood what he was under arrest for, confirmed he understood the right to speak to a lawyer, asked if he wished to speak to a specific lawyer or to duty counsel, and told the defendant that he would have reasonable use of the phone at the station. The breath technician twice confirmed that although the defendant did not wish to speak to counsel, he could change his mind about that anytime and police would put him in touch with, at a minimum, duty counsel.

[46] I also find that the defendant's question, which arose after he was asked if he wished to speak to a specific lawyer or to duty counsel, was not an equivocation calling waiver into question. The relevant evidence at issue, again, was that the defendant said "no" after being asked if he wished to speak to a specific lawyer or to duty counsel. The booking sergeant sought to confirm this, asking "You don't want to speak to any lawyer at all", to which the defendant replied, "Does it help me at all?"

[47] The booking sergeant did not take it as equivocation and neither do I. The question must be taken into context with his earlier response, which was "no". It must be taken into context with what the defendant did, moments later, where he appeared to shake his head slightly and say no. It also has to be taken into context with what the defendant said to the breath technician about this same conversation. More specifically the breath technician said, "Now I understand that you declined to speak to a lawyer. Is that correct?" and the defendant replied "Yeah".

[48] Thus if there is arguably any ambiguity in what the defendant said to the booking sergeant, the breath tech clarified it. If there is another interpretation of what "does it help me at all" means, beyond what the defendant confirmed with the booking sergeant it meant, I have no positive evidence from anyone of that.

[49] The question also has to be taken into context with the breath technician advising the defendant, twice, that if he changed his mind about speaking with counsel, he should let them know.

[50] This entire factual context differs from the factual context in R. v. Perzan [1998] O.J. No. 4820. On my reading of Perzan, the defendant asked "What can a lawyer do for me", to which the arresting customs officer responded by accusing the defendant of crime and prompting an apparent confession.

[51] Here, the question was not expressing confusion about how to implement his 10(b) right, or giving an answer suggesting he would call a lawyer later, such as "not right now', or asking a question about what a lawyer does. There is no suggestion in the evidence that the defendant did not understand what a lawyer does in that situation. He was asking whether contacting counsel would make a difference - presumably a beneficial difference – to his current situation. The police must inform and implement the 10(b) right. They are not charged with advising an accused whether exercising their 10(b) right is a good personal idea or not.

[52] From video of arrest, transport and booking, I found defendant was coherent, comprehended his situation, asked questions when unsure, repeated questions when he didn't get a straight answer, and was responsive to questions. He had been given enough information to make an informed choice. He was told and understood what he was under arrest for, told he could use phone at station if wished, told of the 1-800 number and legal aid application information, told by both the booking sergeant and breath technician that he could call a lawyer of choice or duty counsel, and he was not steered towards one or the other in any fashion.

[53] The defendant never invoked his right to counsel, and more particularly in my opinion, at no point did anything Mr. Codner-Bourne say reflect the desire to talk to a lawyer. As per R. v. Dykstra, [2015] ONSC 6012 at para. 56 as per Campbell J., "…once the police have complied, without delay, with the informational component of s. 10(b) of the Charter, there are no further obligations or duties cast on the police unless and until the individual expresses his or her desire to exercise the right to counsel."

[54] Here, the defendant did not invoke his right to counsel and he clearly made an informed, unequivocal waiver of his right to speak with counsel. The burden to prove a "free, clear, and voluntary change of mind made by someone who knew what they were giving up" rests on the Crown: see R. v. Fountain, 2017 ONCA 596 at para. 27. I am satisfied that burden has been discharged.

[55] If I am wrong in this conclusion, and there was a s. 10(b) breach here, I would have excluded any remaining evidence obtained from the breach. Although a s. 8 breach was never explicitly conceded by the Crown to my recall, the 10(b) breach followed the obvious constitutional problem that arose when Cst. Armstrong read the wrong breath demand. The combination of constitutional violations would increase seriousness of the breach. The impact of a s. 10b violation is to separate a detainee, in vulnerable circumstances, from what the Court of Appeal in R. v. Rover, 2018 ONCA 745 described at para. 45 as "a lifeline for detained persons". Moreover, while the public interest in trial on the merits is strong, the visual observations of the breath technician is not 'real' evidence in the sense that breath readings are.

RESOLVING THE IMPAIRED CHARGE ON ITS EVIDENTIARY MERITS

[56] I turn now to resolving the charge of impaired driving, or rather impaired care and control, on the evidentiary merits. Given my conclusion on each of the Charter applications, I have not excluded the breath technician's observations, nor his opinion that the defendant's ability to drive a motor vehicle was impaired by alcohol. The Crown has, correctly, made no attempt to rely on the breath results taken as the result of Cst. Armstrong's incorrect breath demand. Some evidence was admissible only to assess the officers' grounds to arrest, such as the admission of alcohol consumption, the hearsay information given to police over dispatch, and the hearsay information given to police from civilians at the scene.

[57] The final question is whether, on all admissible evidence, the Crown proved that the defendant was in care and control of his motor vehicle while his ability to operate it was impaired by alcohol. Care and control was not contested. Proof of impairment was. Impairment, from a legal standpoint, can range from a slight to a great impairment of one's ability to drive. But whatever degree of impairment is proven, it still must be proven beyond a reasonable doubt. As per R. v. Smith, [2001] O.J. No. 4660 at para. 28, "[a] distinction must be made between the conclusion of 'slight impairment' as mentioned in Stellato and 'slight' evidence of impairment which will not generally meet the standard of proof applicable in criminal cases."

[58] Schreck J., in R. v. Simpson, 2017 ONCJ 321, at para. 29, described impairment as generally "meaning that an individual's judgment is altered and his or her physical abilities, such as coordination or reaction time, are reduced". Factors to assess can include poor driving, fine motor skills and gross motor skills, physical symptoms such as gait and balance, the presence of alcohol on breath, slow reaction times, exaggerated emotions, reduced judgment calls (such as unsafe lane changes or driving too slow or fast), inability to focus on task, mental confusion, nausea or vomiting, inability to carry out instructions, altered consciousness such as passing out, and expert evidence relating breath results to an impaired ability to drive: The Law of Impaired Driving: National Judicial Institute, at pp. 20-21.

[59] There is no single evidentiary prerequisite to proving impairment. In a circumstantial case of impairment, "all evidence must be considered, including physical symptoms, conduct and manner of driving ….including evidence of non-impairment, in determining whether the Crown has discharged its onus": R. v. Griffin, [2014] O.J. No. 2029 at para. 63.

[60] The smell of alcohol on a person's breath is evidence of alcohol consumption, and does not automatically equate to evidence of impaired driving. The evidentiary record must link that consumption of alcohol with impairment. Alcohol consumption need only be a contributing factor to impairment. It need not be proven as its sole cause, or as an important cause.

[61] Turning to whether impairment has been proven in this case, the evidence as a whole included the officers' roadside observations of the defendant sleeping at the wheel, engine running, in a live lane of traffic; the smell of alcohol noticed by both arresting officers and the breath technician; the red eyes noticed by Cst. Benevides and the breath technician; the defendant's initial failure to wake up, when the officers attempted to wake him; the defendant's initial confusion after he woke up; the slight sway when police cuffed his hands to the rear; and the opinions of both Cst. Benevides and the breath technician that the defendant's ability to operate a motor vehicle was impaired by alcohol.

[62] Some aspects of this evidence received little to no weight in my analysis. The opinion evidence of both police officers was one such example. They were of course admissible, as per R. v. Graat, [1982] 2 S.C.R. 819. But I had little idea what specific observations either officer rested their opinion on. I had great difficulty reconciling the breath technician's opinion with the videotaped footage of the defendant's actual interaction with him. I had great difficulty reconciling Cst. Benevides' opinion with the videotaped footage of the defendant's interactions with him.

[63] If the evidentiary record ended at the summary of events observed by police during their first minute or so at the roadside, my task would have been much easier. However, I cannot isolate individual pieces of evidence. I must look at the evidence as a whole. When I did that, I also took into account that:

• The conflicts, between the scout car video and the officers' testimony on important points, left me unsure whether either officer attempted to touch the defendant in order to wake him up;
• From the scout car footage, I concluded that if the defendant did fall asleep after saying "you're traffic", this lasted likely only a few seconds and at most, up to 13 seconds and during that timeframe police definitely did nothing physical to wake him up;
• The defendant stepped out of his car quite quickly after this exchange where he said "you're traffic", with the important point being that the timeframe engaged was very brief;
• The defendant was not taken out of the car by any officer, but stepped out of his car himself of his own volition and using his own manpower. While Cst. Armstrong did place a hand on him, this appeared to be the officer assuming control prior to handcuffing the defendant;
• The defendant did sway, slightly, after getting out of his car. This exactly coincided with the police physically directing him closer to the car to enable the cuffing to take place. Other than that, his balance after exiting the car was perfect and this remained evident through all videotaped footage including the booking process and the breath test process;
• I could not see the unsteadiness that the breath tech reported seeing "a bit" of, when the defendant re-entered the breath room the second time;
• Other than initial confusion about being asleep in a live lane of traffic, the defendant's speech evidenced nothing unusual after stepping out of the car. His questions and answers were on topic and responsive. His speech was entirely normal. He did not slur, or exhibit strange emotions, or speak at an exaggerated slow pace, or any of the other impairment indicia that can often be observed in speech;
• While the defendant's eyes were reported as bloodshot by Cst. Benevides and the breath tech, with the latter adding they were watery, the defendant reported wearing contact lenses, it was approximately 4 a.m. by that point, and the defendant's watery eyes may have coincided with the point where he was crying, and;
• The breath technician's physical observations included that the defendant remained polite and cooperative, that his eyes were not glassy, droopy or unable to focus, that his gait was generally normal; that he was able to follow instructions including tasks involving use of his fine motor skills, with no apparent difficulty whatsoever; that there was nothing unusual about the defendant's speech, nothing unusual observed about his appearance, his clothes, his skin tone, or generally his behaviour overall. This viva voce testimony was solidly corroborated by the scout car video and booking video.

[64] In this case, the Crown's submission rested heavily on the undisputed fact that the defendant fell asleep in a live lane of traffic. This was indeed a strong piece of evidence for the Crown. But when I weighed this and other evidence supporting the Crown theory, along with the evidence supporting non-impairment, I found I had a reasonable doubt on the ultimate issue. The chain of events, from the moment the defendant stepped out of the car until his last interaction with the breath tech, were all captured on videotape and to my view, led at least to a reasonable doubt on the question of impairment.

[65] I gave anxious consideration to whether impairment was the only reasonable inference to be drawn from the smell of alcohol and the defendant falling into a deep sleep while at the wheel. As per the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 at para. 37, I must "consider 'other plausible theor[ies]' and 'other reasonable possibilities' which are inconsistent with guilt" and that such inferences need not be established by proven facts". As with so many aspects of criminal law, this exercise comes down to reasonableness.

[66] In the case at bar, I could not rule out that the defendant had consumed alcohol which did not impair his ability to drive, and fell asleep due to extreme fatigue. The evidence of falling solidly asleep while driving, or while stopped at a red light, supported a reasonable inference of impairment. But soon after exiting his car, the defendant's words and actions supported a reasonable inference of non-impairment.

[67] The evidence supporting non-impairment was hardly brief and fleeting. His behaviour consistently supported non-impairment while being arrested, while in the scout car, while being booked at the station, while in the breath room, while he was engaged in conversation, and when he was engaged in physical tasks.

[68] When I looked at all the admissible evidence, as a whole, the only conclusion I could draw safely was that I had a reasonable doubt as to whether the Crown had proven impairment to the required standard. Accordingly, the defendant must be acquitted of impaired driving.

Released: July 19, 2019

Signed: Justice H. Pringle

Footnotes

[1] From my review of the breath room video, the crying only appeared to happen after the defendant was told of the breath test results.

[2] After listening to the audio here several times, with headphones, I have concluded the defendant said "doesn't make a difference" as opposed to "does it make a difference" as per the transcript.