Ontario Court of Justice
Date: 2019-12-12 Location: Newmarket
Between:
Her Majesty the Queen
— and —
Allyn-Marie Evelyn Scott
Judgment
Evidence and Submissions Heard: 12 December, 2019.
Delivered: 12 December, 2019.
Counsel:
- Mr. Martin Dionne, counsel for the Crown
- Mr. Alan Gold, counsel for the defendant
KENKEL J.:
Introduction
[1] Constable Landry was dispatched twice to investigate a complaint of possible impaired driving in relation to the same vehicle. On the second occasion he located the car parked in a plaza. He activated his emergency lights and parked behind the rear end of the vehicle. PC Landry spoke to the driver who told him that her brother and boyfriend were coming to pick her up. He noticed an odour of alcohol on her breath. Her eyes were glossy and bloodshot. Ms. Scott retrieved the documents requested by the officer. Later in their discussion Constable Landry said the accused told him she was drunk, too drunk to drive so that's why she called to be picked up.
[2] Ms. Scott was arrested and processed by other officers, but they were not called as witnesses. The Crown concedes operation is not proved as there was no movement or "driving" (conduire) as then required by s 214. The Crown submits there is evidence sufficient to prove "care or control" as an included offence based on Ms. Scott's use of the vehicle fittings and her admission of intoxication. The defence submits that Ms. Scott was detained by the officer investigating an allegation of impaired operation. Any statement she made in that context before she had been warned of her right to counsel and before she had the opportunity to consult counsel may have contributed to the officer's grounds, but cannot be used against her to prove the offence alleged.
Operation
[3] Ms. Scott is charged with impaired operation which at the time was contrary to s 253(1)(a) of the Criminal Code. Section 214 applied to that section, defining operation as "to drive the vehicle" (le conduire). There's no evidence that Ms. Scott's parked vehicle moved at any time. The Crown did mention the words "care or control" when introducing himself, "I'm the Crown for the impaired care or control," but the accused was arraigned on a charge of impaired operation and no request for amendment was made. It was not made plain to the court that the Crown was proceeding on an included offence. Where the Crown knew there would be no evidence of operation, and the defence elected not to call evidence based on the charge before the court, it's not plain it would be fair to make a finding on the included offence, however on either count a further issue is determinative.
Statements at the Roadside
[4] Ms. Scott made two statements at the roadside about her intoxication. The second statement came after she was cautioned and advised of her right to remain silent which she said she understood. That statement came while PC Landry was questioning the accused about the amount of alcohol she'd consumed that evening. The law is plain that conscripted admissions related to sobriety from a person detained at the roadside are inadmissible to prove the accused's guilt – R v Orbanski 2005 SCC 37, R v Milne, [1996] OJ No 1728 (CA) leave refused [1996] SCCA No 353.
[5] Constable Landry confirmed that Ms. Scott's statement about the timing of her last drink was prompted by his question even though that wasn't recorded in his notes. The statement that followed was noted as "she agrees she's too drunk to drive." The use of the word "agrees" in his notes suggests that this was also in response to a question. The officer did not have a verbatim recollection of this part of his investigation, but he agreed it's possible that he asked other questions that weren't recorded in his notes. That's likely, considering the officer was trying to determine whether he had grounds to take any further investigative steps at that point.
[6] Ms. Scott was detained by the officer and was being asked investigative questions related to impairment. The Crown did not disclose or play PC Landry's in-car video which recorded that transaction. The statements are not admissible to prove the offence alleged. They are not saved by the doctrine of res gestae and the limited evidentiary record provided by the Crown does not provide any other path to admissibility.
Conclusion
[7] I find the accused's statements at the roadside in this context are inadmissible to prove guilt on the charge alleged. The remaining evidence as a whole is consistent with alcohol consumption but falls far short of proving impairment in the ability to operate a vehicle as alleged.
[8] The charge is dismissed.
Delivered: December 12, 2019.
Justice Joseph F. Kenkel