Court File and Parties

Ontario Court of Justice

Court File No.: 18-2229

Between:

Her Majesty the Queen

— and —

Mary Ceponis

Before: Justice G. L. Orsini

Heard on: July 23 and October 9, 2019

Oral Reasons for Judgment: November 25, 2019

Written Reasons Released: December 2, 2019

Counsel

E. Wilson — counsel for the Crown

P. Ducharme — counsel for the defendant Mary Ceponis

ORSINI J.:

Introduction

[1] On October 13, 2018, the defendant, Mary Ceponis, was charged with impaired driving and operating a motor vehicle with a blood-alcohol concentration in excess of the allowable limit, contrary to sections 253(a) and 253(b) of the Criminal Code of Canada.

[2] Although her trial commenced after the enactment of amendments to the Criminal Code which replaced the above-noted sections, the court was not required to rule on the retrospectivity of those amendments as they relate to the presumptions of identity or accuracy for the following reasons:

(i) the Crown conceded it had not proven a statutory pre-condition for reliance on the presumption of identity under the previous legislative scheme, namely that the first breath sample be taken within two hours of the time of the alleged offence. The applicability of the new legislative scheme, which contains no such presumption, was therefore a moot issue; and

(ii) the defence conceded the breath readings accurately reflected the defendant's blood-alcohol concentration at the time the tests were administered.

[3] Instead, the case rests largely on assessments of credibility and, in particular, the credibility of the defendant who claimed to have consumed alcohol following her arrival home and prior to her arrest.

Evidence

Kristyn Durance

[4] Kristyn Durance testified as to her observations of the defendant's driving.

[5] Sometime between 6:00 PM and 6:30 PM, Ms. Durance was driving home from her aunt's house when she encountered an SUV operated by the defendant. As a result of the encounter, she followed the SUV to the defendant's home and contacted the police.

[6] Ms. Durance testified the defendant's vehicle turned directly into her lane from a side street. Her evidence can be summarized as follows:

(i) she was operating her vehicle in a through lane of traffic;

(ii) she observed the SUV as it turned from a side street that was controlled by a stop sign;

(iii) it did not come to a complete stop before it made its turn;

(iv) it turned into the oncoming lane directly in front of her;

(v) as she slammed on her brakes, the SUV veered to its left at the last second thereby avoiding a collision;

(vi) after veering at the last second, its passenger-side tires mounted the curb on the opposite side of the road;

(vii) it was swerving between the right curb and the middle of the roadway. Although it did not strike the curb, it crossed over the middle of the roadway. She was unable to say how many times that occurred;

(viii) she performed a U-turn and began following the SUV as she assumed the driver was drunk;

(ix) she stopped immediately behind the SUV as it was about to turn left onto another side street. It stopped very close to the right-hand side of the road as it began making a left-hand turn;

(x) it almost struck another vehicle coming in the opposite direction but stopped to allow the other car to safely pass before completing the turn;

(xi) she dialed 911 shortly thereafter;

(xii) it made another turn onto a side street before turning into the driveway of the defendant's residence;

(xiii) she blocked the defendant's driveway while she awaited the arrival of the police;

(xiv) she could have been waiting for 20-25 minutes before police arrived;

(xv) the distance from the defendant's driveway to where she first saw the SUV was approximately 700 meters;

(xvi) the SUV was travelling at a normal speed.

[7] Ms. Durance also made physical observations of the defendant prior to the attendance of Constable Boyd.

[8] She said the defendant confronted her. She said the defendant appeared to be mad at her for being followed and began knocking on her window. She said she did not roll the window down and that the defendant went into her home. She said the defendant exited her home a short time later to retrieve her son from the rear of the SUV before returning back to her home. She said the defendant exited her home several minutes later with a notepad. She said the defendant looked mad and appeared to be writing down her (Ms. Durance's) license plate. She said the defendant came out of her home for a third time within seconds of the arrival of Constable Boyd.

[9] When asked what physical observations she made of the defendant, Ms. Durance could only describe what she thought the defendant was wearing. She gave no evidence of observable signs of impairment.

[10] Ms. Durance maintained she did not know the defendant and denied contacting the CAS to report concerns about her.

Constable Boyd

[11] Constable Boyd arrived at the scene at approximately 6:58 PM. He first spoke to Ms. Durance and obtained the above-noted driving evidence.

[12] After speaking with Ms. Durance, he turned his attention towards the defendant.

[13] He described the defendant as very hostile. He said she made a number of utterances including the following:

(i) that the person who was following her was a "bitch" who was just trying to get her in trouble – that this person had followed her home from the same party;

(ii) that she had a family full of lawyers, that the officer couldn't touch her and that he didn't see her driving;

(iii) that police officers are the worst since they all drink and drive;

(iv) that other officers that she began to mention by name wouldn't do this to her.

[14] Constable Boyd testified as to the following physical observations he made of the defendant:

(i) that she was unsteady on feet when walking across the front lawn of her residence;

(ii) that upon speaking with her, he noted a strong odour of alcohol on her breath;

(iii) that she was angry and combative, and her eyes were "kind of welling up" as a result. He said she oscillated between being combative and apologetic.

[15] These physical observations, together with the driving evidence he received from Ms. Durance, formed the basis of his grounds to arrest the defendant for impaired driving.

[16] He arrested the defendant at approximately 7:08 PM. In cross-examination, he said that after grabbing her left wrist, she turned towards him and he pushed her into the police cruiser to prevent any further physical altercation. He said the defendant complained that the handcuffs he had placed on her were too tight.

[17] In cross-examination, he was shown a number of photographs of injuries to the defendant. He denied causing the majority of those injuries but said some of them could have been caused during the course of his arrest.

[18] Despite having already testified as to utterances made by the defendant, it wasn't until cross-examination that Constable Boyd first acknowledged being told by her that she had been drinking at home for 40 or 45 minutes prior to his arrival. He had no explanation for not disclosing this to the breathalyzer technician, while agreeing he would have been asked for any such information he obtained from the defendant. Upon being pressed further, he said he wasn't sure "verbatim" what he told the technician, and that the video recording of the breath room would "show the entire interaction".

Constable Nield

[19] Constable Nield, the breathalyzer technician, interacted with the defendant between 8:20 PM and 8:55 PM.

[20] In examination-in-chief, he said the defendant's eyes were bloodshot and glossy, that her pupils were dilated and that her speech was slurred. He said that her condition was orderly - that while she was upset at the situation she was in, she was not "out of hand". He said she wanted to lodge a complaint against the arresting officer but denied having any injuries.

[21] Constable Nield testified as to the grounds for arrest he received from Constable Boyd. He said he received information regarding the initial traffic complaint made by Ms. Durance. He did not know when the defendant was last in care and control of her vehicle. He did not testify to receiving any information which related the defendant's driving behaviour to the consumption of alcohol, let alone that the defendant reported consuming alcohol after arriving home.

[22] In cross-examination, he agreed that he recorded the defendant's speech as "good", the highest rating he could give her. He explained what this meant by saying, "… When I say good, I don't mean – in terms of that I'd say someone just talking to me in a good manner. Like there is no concern there."

[23] He went on to acknowledge that he never asked the defendant how much she had to drink, when she started drinking or when she finished drinking. When it was pointed out to him that these are standard questions contained within the Alcohol Influence Report, he testified that he was not familiar with such a Report. He said in his three years as a breathalyzer technician he has never made such inquiries.

[24] Although the analysis of the defendant's breath samples showed a blood-alcohol concentration in excess of the permissible limit, there is evidence that the first test was not taken until 8:28 PM, approximately two hours and four minutes after the defendant was last in care and control of her vehicle.

Mary Ceponis

[25] Ms. Ceponis testified that she and her five-year-old son had attended a potluck at the residence of her friend, Anja Crombeen. She said she arrived at approximately 4:30 PM-4:45 PM and left at approximately 6 PM.

[26] While at the potluck, she said she consumed one full bottle of beer and part of a second bottle, both of which she brought with her. She denied consuming any other alcohol that day prior to, or while at, Ms. Crombeen's residence.

[27] Upon leaving the event, she said Ms. Crombeen walked her to her vehicle.

[28] She said she drove directly home. She estimated this would have taken approximately five minutes. She said she and her son went directly inside. She denied going inside and then returning to retrieve her son.

[29] She denied engaging in the driving behaviour described by Ms. Durance. She specifically denied ever turning directly in front of another vehicle or being followed home by anyone.

[30] She said it wasn't until some time after she arrived home that she first noticed Ms. Durance's vehicle parked at the end of her driveway. She said she had never seen this vehicle before, did not know why it was parked across her driveway and "didn't think much of it at all". She said she did not know Ms. Durance and denied ever confronting her.

[31] Ms. Ceponis says she consumed at least three 375 millilitre glasses of wine between the time of arriving home at approximately 6:05 PM and the arrival of Constable Boyd at 6:58 PM.

[32] Prior to being arrested, she said she told Constable Boyd she had a few glasses of wine since arriving home approximately 45 minutes to an hour ago. She said the officer never asked if she consumed any alcohol prior to this time. She denied uttering many of the things attributed to her by Constable Boyd.

[33] Ms. Ceponis also gave evidence regarding her involvement with the Children's Aid Society. She indicated that the CAS contacted her shortly after her arrest and arranged to come out for a home visit a few days later.

[34] She said she was advised by her CAS worker, Lauri Laprise, that Ms. Durance had called both the police and the CAS to report her concerns – that Ms. Durance relayed specific details about her (Ms. Ceponis') drinking problem and her failed marriage, including her name, the name of her ex-husband and her children's names and ages.

[35] This evidence was given presumably to support the contention that Ms. Durance knew of the defendant and had some motive to fabricate a story about her.

Anja Crombeen

[36] Ms. Crombeen testified that the defendant attended her residence on October 13, 2018 for an annual Oktoberfest party. She estimated the defendant arrived at approximately 4 PM and left at approximately 6 PM.

[37] She admitted that she did not actually see how much, if any, alcohol Ms. Ceponis had consumed but assumed she had brought some with her since people were told to bring their own drinks.

[38] She said she walked Ms. Ceponis to her vehicle when she was leaving, and that Ms. Ceponis did not appear to have any symptoms of impairment. She said she had no concerns with Ms. Ceponis driving home with her son in the car and said that if she did, she would've told her to leave her car there.

Laurie Laprise

[39] Ms. Laprise said she met with the defendant in her capacity as a CAS worker on two occasions but denied ever telling the defendant that Ms. Durance was the one who had reported her to the CAS.

[40] She testified an anonymous family member had contacted the CAS to advise the defendant's drinking problem was the cause of her marital breakup and that the defendant had recently been charged with impaired driving while her child was in the vehicle. She said that Ms. Durance's name was not contained within her notes, and that she did not even know whether the anonymous family member was male or female. As far as she was concerned, Ms. Durance had nothing to do with her investigation.

Shaun Hood

[41] Mr. Hood was in a relationship with the defendant and present at the defendant's home on one occasion when the CAS came to meet with her.

[42] Mr. Hood said that Ms. Laprise had a police report in her hand when she mentioned Ms. Durance by name. He said of the manner in which she did this led him to believe that Ms. Durance was responsible for contacting both the police and the CAS. He could not say precisely what Ms. Laprise said that caused him to be left with this impression.

Analysis

Over .08

[43] As indicated above, the Crown acknowledges it cannot rely upon the presumption of identity.

[44] Given that the defence concedes the accuracy of the breath results, both the Crown and the defence agree I can take judicial notice of the rate of elimination of alcohol from the body, as well as the two-hour plateau, in performing my own calculations as to the defendant's blood-alcohol concentration. They both agree that in order to do this, I must reject the defendant's evidence regarding the post-driving consumption of alcohol. In other words, if I have a reasonable doubt regarding post-driving consumption, then expert evidence would be required to determine what impact this would have on the breath results in this case. I would be unable to do my own "read back" calculations.[1]

[45] As with most of the cases that fall into this category, the credibility of the defendant becomes the central issue.

[46] Having reviewed all the evidence in this case, I find that while the defendant was not a particularly credible witness and that I do not believe much of what she said, I am unable to reject her evidence that she consumed some alcohol after arriving home and prior to the involvement of the police.

[47] In this regard, the evidence of Ms. Crombeen was that the defendant was showing no signs of impairment by alcohol when she left Ms. Crombeen's home. I have no basis for rejecting this evidence. She did not attempt to embellish or exaggerate her evidence. It was not diminished in cross-examination.

[48] While the defendant's behaviour and the indicia of impairment described by Constable Boyd are consistent with the consumption of alcohol, there was a significant gap between the time of driving and the officer's arrival at the defendant's residence.

[49] There does not appear to be much dispute that the defendant arrived home at approximately 6:24 PM before the arrival of Constable Boyd at approximately 6:58 PM. The defendant exited her residence and was arrested at 7:08 PM.

[50] Based on the above, I am satisfied that the defendant was in her home for approximately 35-40 minutes before speaking with Constable Boyd. She clearly had the opportunity to consume alcohol during that time.

[51] Finally, I must consider that this is not one of those cases where a claim of post-driving consumption surfaces sometime after the defendant is charged. In such cases, the difficulty in disproving a delayed claim will understandably account the court's heightened focus on the defendant's credibility. Simply put, through no fault of the police, that is often all the court is left with.

[52] Constable Boyd was immediately advised of the defendant's post-driving consumption claim. She provided this information to him prior to her arrest. Her claim was made at a time and place where an investigation could have been attempted. No such investigation was undertaken.

[53] Having considered the above-noted factors, I am not satisfied beyond a reasonable doubt that the defendant did not consume alcohol after arriving home and prior to the arrival of the police.

[54] In the absence of expert evidence, I am unable to conduct my own readback.

[55] As a result, the defendant will be found not guilty of operating her motor vehicle with a blood-alcohol concentration in excess of the allowable limit.

Impaired Driving

[56] While the Crown need only prove the defendant's ability to operate a motor vehicle was slightly impaired by the consumption of alcohol, it must nevertheless prove its case beyond a reasonable doubt. Accordingly, evidence of slight impairment should not be confused with slight evidence of impairment.

[57] In this regard, the Court must consider the evidence as a whole in determining whether the Crown has proven the required degree of impairment beyond a reasonable doubt.[2]

[58] While physical signs of impairment are often quite relevant, the strength of this evidence can be undermined by the possibility that such signs are the result of post-driving, as opposed to pre-driving, consumption. The physical observations testified to by Constable Boyd and Constable Nield were made some time after the driving occurred in this case.

[59] Given the Crown has not disproven the post-driving consumption of alcohol beyond a reasonable doubt, I am unable to conclude from these observations that the defendant's ability to operate a motor vehicle was impaired at the time of driving.

[60] I note that Constable Boyd's observations of the defendant were made approximately 40 minutes after she was last in care and control of her motor vehicle. Constable Nield's observations were made approximately two hours after that time.

[61] In contrast, Ms. Durance had ample opportunity make observations immediately after the defendant exited her vehicle. The defendant walked toward Ms. Durance's vehicle. She then went into her home and came back out on three separate occasions - once to retrieve her son, a second time with a notepad and a third time upon the arrival of Constable Boyd.

[62] Despite following the defendant to her home because she believed her to be a drunk driver, at no time did Ms. Durance provide any evidence of observable signs of impairment. In particular, she gave no evidence that the defendant had any difficulty walking.

[63] At the same time, I accept the evidence of Ms. Durance as it relates to the defendant's driving. She was not shaken to any significant degree in cross-examination. She did not know the defendant and had no reason to follow her home other than that she believed her to be driving while drunk.

[64] I reject the defendant's evidence on this same issue. I also find as a fact she complained to Constable Boyd about being followed by Ms. Durance. Constable Boyd had no reason to make this up.

[65] I accept the defendant was upset at being followed to her home. Despite this, she testified to being unaware she had been followed. If, as the Crown points out, the defendant and Ms. Durance were unknown to one another, there would simply be no reason for Ms. Durance to show up at the defendant's residence after contacting the police.

[66] At the end of the day, I must ask myself whether I am satisfied beyond a reasonable doubt the defendant's ability to operate her vehicle was even slightly impaired by the consumption of alcohol. I remind myself the Crown must prove its case beyond a reasonable doubt.

[67] In all the circumstances, given the evidence of Ms. Crombeen, the reasonable doubt I have regarding post-offence consumption of alcohol and the extent to which this might reasonably account for the observations of the officers in this case, I am unable to conclude beyond a reasonable doubt that the defendant's ability to operate her motor vehicle was impaired by the consumption of alcohol at the relevant time.

[68] It would be inappropriate to infer an impaired ability to operate a motor vehicle based on a rejection of the defendant's evidence regarding her driving behaviour. While impairment by alcohol might be one reasonable explanation for that behaviour, the evidence does not satisfy me beyond a reasonable doubt that it is the only one. In the circumstance of this case, requiring the defendant to provide such an explanation would, I find, amount to a reversal of the burden of proof.

[69] I am left with some evidence of bad driving following the consumption of alcohol. Without more, the evidence does not satisfy me beyond a reasonable doubt that the defendant's ability to operate her motor vehicle was impaired by the consumption of alcohol at the relevant time.

Conclusion

[70] For all the above reasons, I find the defendant not guilty of both counts on the Information.

Released: December 2, 2019

Signed: Justice G. L. Orsini

Footnotes

[1] See R. v. Paszczenko; R. v. Lima, 2010 ONCA 615

[2] R. v. Stellato, [1993] O.J. No. 18 (C.A.), aff'd , [1994] S.C.J. No. 51