Ontario Court of Justice

Date: October 26, 2021 Information No.: 4521-998-19-NT5722-00

Her Majesty the Queen v. Carly Delorme

Reasons for Judgment

Before: The Honourable Justice D. Maund Heard: October 26, 2021, at Welland, Ontario

Appearances: A. Galea, Counsel for the Crown D. Holmes, Agent for B. Starkman, Counsel for Carly Delorme

Maund, J., Orally:

This is the matter of the accused, Carly Delorme. Ms. Carly Delorme stands charged with two criminal offences alleged; namely, impaired operation of a conveyance, and having at that time a blood-alcohol concentration equal to or in excess of 80 milligrams per cent within two hours of ceasing to operate such a conveyance. The alleged offences result from an incident on November 10th, 2019 at the City of Niagara Falls in this region.

The trial of this matter commenced on July 7th last, and the argument was put over to August 24th. It was put over to today in this virtual court in Welland for judgment. These are my Reasons and my decision. I note that the original Charter Application filed at trial was abandoned by Defence at the time of argument, so I will not deal with that.

Dealing with the facts of the investigating officer, Constable Joseph Beltrano and the qualified technician involved, Constable Thomas Plato. Both were serving officers with the Niagara Regional Police at the relevant time. Their evidence with certain documentary evidence filed by the Crown constitutes the entire trial record for my consideration as the trial judge.

Constable Beltrano was on patrol in the early morning hours of November 9th, 2019. He received a radio call at 2:55 a.m. about a motor vehicle accident at Keith and Portage Roads in Niagara Falls. He arrived on the scene very quickly, within in fact five minutes, and he found a 2009 grey Nissan which had come into violent contact with a traffic pole at that location. The car had extensive damages, particularly to its front end, which the officer described as totally smashed in.

Photographs of these damages to the Nissan at the scene were filed as exhibits by the Crown. The car was in the middle of Portage Road, astride or on top of a median in that area. The front safety air bag had been deployed. A female, later identified as the accused Ms. Delorme, was in the driver’s seat, and there were no passengers of the vehicle inside. Nor were there any civilians in the vicinity at that hour of the morning.

The officer indicated that the car was not running, he believed because of the extent of the damages that were caused to the engine. The keys, though, were in the ignition. As requested, Ms. Delorme did produce a valid Ontario driver’s licence. As he was concerned that she might have been injured in this collision, the officer instructed her to stay inside the vehicle until the paramedics arrived to assess her condition.

The O.I.C. made certain immediate observations of the person, who eventually is our accused, while she was inside the car. He detected an odour of alcohol from her breath. And on his prompting she acknowledged that she had consumed two beers earlier in the evening. He believed that her speech was slurred. She was talkative and polite at all times, and he described her face as pale.

On the arrival of the paramedics, Ms. Delorme walked without assistance to the ambulance. The officer described her manner of walking as “stiff rigid-like movements”, while holding her arms stiffly to the sides of her body. In his opinion she was trying to overcompensate, potentially, to maintain her balance while walking in that manner to the ambulance.

After the defendant was cleared by the ambulance staff, she was free to deal with the officer. At 3:21 a.m., Constable Beltrano arrested Ms. Delorme for operating a motor vehicle while impaired. The nature of her unusual walking movements, in his opinion, together with his other observations and the accident scene, crystalized his grounds for arrest at that point. The right to counsel, caution and formal breath demands were duly made after that. No issue arises from those normal police procedures.

Subsequently at 3:28 a.m., the accused was driven to district headquarters and she arrived at 3:32 a.m. in the morning. The booking procedure and the sally port inside the police detachment were entirely recorded on video in the station. Duty counsel was called at the Defendant’s request, and they called back at 4:06 a.m. The usual booking procedures and access to counsel took some time. Time is not an issue in this matter that I am considering.

Prior to that there was some delay while a female officer was located to help complete the search. All the others at that point had been male. The videos included audio, and they captured extensive interactions, both visual and audio, between Ms. Delorme and the officers prior to her breath test procedures that morning.

Among other things, the accused stood without any assistance, she walked normally as directed, and she cooperated with the removal of her jewellery, and complied with all the various search directions and mandates that the officers put to her without any hesitation or incident. And just to deal with the speech issue, she is heard telling the booking Sergeant that she consumed “a couple of beers but no drugs.” So her words were clear from what I heard on that video. And her speech gave no indication at that point in time of being slurred. She was finally escorted to the breath tech for his procedures at 4:19 a.m.

In all of the videos Ms. Delorme displayed no unusual walking or any exaggerated or strange movements to suggest that she might be having difficulty maintaining her balance. She complied with all the physical requirements during that booking with no difficulty. That could be seen at least by this judge. And her speech was always clear and responsive throughout the procedure.

Finally, the arresting officer served Ms. Delorme, after the breath tests had been concluded, with a certificate provided to him by the qualified technician. He identified this document at page 20 of the Crown’s virtual exhibit book, which I asked to be marked as an exhibit. As I recall, I asked that both the USB record of this electronic virtual exhibit as well as a hard paper copy of this exhibit be produced by the Crown and marked. It is not just because I am old-fashioned. I always do that to make sure that there are different forms of the copies to go into the evidence.

Mr. Starkman made a timely objection to the filing of the Certificate, on the basis of the then Charter Application that he had brought and for the non-Charter issues. Accordingly, at that point it was filed, subject to argument, provisionally.

On cross-examination, the officer in charge agreed that the vehicle was completely destroyed. It was not drivable. The wreck was in the roadway, but it was fully illuminated by stores in that area, which was a commercial area of that town. At the time, in the morning, traffic was described as very light. Constable Beltrano concluded that the defendant’s speech was slurred by the manner he felt she prolonged certain of the words. However, he made no notes about her speech pattern or specific words or the quality of her speech during the half hour that he first observed her at the scene. And the officer readily agreed with the suggestion by Defence that on the station video Ms. Delorme speaks very well, with no indication of slurring her speech. He was not sure whether he had included slurred speech as part of his grounds to the breath tech. But testified he may have left this out. And the breath tech later confirmed that that was not one of the things that he had included in his grounds.

As to the officer’s observations of the Defendant walking to the ambulance, while he maintained that she was overcompensating in his view by taking rigid steps, he did concede to Mr. Starkman that she did not look unbalanced at any time during this walk movement. And the O.I.C. agreed with Mr. Starkman that there was “no hint of unsteadiness” seen in the walking by the accused in the station videos, as I have already noted. He also agreed there was no unsteadiness on her as she was standing, inside the booking procedure, unaided, and during the other motions she was making. Nor was there any physical weaving or apparent lack of balance on her part. This is in the videos.

As to the disputed Certificate of the technician, the arresting officer did not know whether the virtual exhibit that he had identified was the original or a copy which was generated later. The Crown case identification number – I should say the police identification number - which would have been generated later obviously, appears outside of the margins of the Certificate on the top. So in other words, the Certificate has a line around it, and the case number is above it, on the exhibit book filed by the Crown.

The qualified technician, P.C. Thomas Plato, also testified. And his status and qualifications as a breath technician were not in issue. P.C. Plato conducted the breath procedures during this investigation. And he received grounds from the arresting officer after he had fully prepared his 8000C instrument. These grounds included, according to his evidence, the accident scene observations by the officer, the smell of alcohol, and again what he described as her stiff rigid walk at the scene. Also, he said there was an alleged statement by the defendant as part of those grounds, which I know was not referred to in Constable Beltrano’s evidence, that the accident happened because she was not paying attention. Again, this was the grounds.

There is no reference to slurred speech in the grounds, as I have noted them. The breath tech’s own physical observations when he was with the subject included the following. There was the smell of alcohol on her breath, he said her eyes were bloodshot and glossy, although her face colour is noted as normal, not pale. Those were essentially the grounds, and the accident of course – the scene of the accident, as it was described. He testified, based on these observations, that in his opinion Ms. Delorme was impaired by the consumption of alcohol. This was prior to the tests but also in consideration with the motor vehicle accident scene.

While the admission of the Certificate remains in dispute, as one of the issues I have to decide, Constable Plato testified that the two tests performed resulted in readings of 224 and 202 milligrams per cent at 4:28 and 4:51 a.m. respectively. And he truncated those readings in the certificate to 220 and 200. P.C. Plato testified that he created the Certificate in question, and he made two identical copies. He also identified the test record card as the actual hard printout from the instrument. And this was again provisionally marked as Exhibit 5.

On cross-examination, the breath tech agreed that the Defendant’s speech was good. He observed no walking in his presence that could be described as rigid or stiff, or unusual in that way. Nor did he note any imbalance issues on the part of Ms. Delorme when she was in his presence.

P.C. Plato was shown the number at the top of the electronic virtual certificate, that is that case number at the top of page 20, outside of the margins. He believed that this case number must have been added later. Frankly, it is the only logical explanation for it. This led him to agree that the exhibit in front of him could not have been the “original certificate”, but rather a copy of the original. That is to say, what he was looking at including that number outside the margin could not have been. Similarly, he agreed that Exhibit 5, the test record which the machine printed out after the test must have been a copy of the original. He referenced the electronic form which was shown to the witness was on this virtual trial.

Finally, the breath tech indicated that with respect to his information about the solution in the simulator and its setup, he – his word was “probably” - looked at the solution change at the station. But he could not state it more strongly than that. And he said that categorically. The officer, P.C. Plato, could not say independently of the information in the test printout where the solution had originated. The identification number was typed in by the person who had previously changed the solution, he testified.

Now there are three types of issues that arose from this trial and the careful argument by Defence and the Crown.

The first one I will deal with was proof of impairment as an element of the alleged offence in count one.

The Defence submits that the Crown has failed to discharge its burden to prove the element of impairment beyond a reasonable doubt. The Crown demurs and takes the position that the totality of circumstances established in the evidence, including the unexplained accident, based on all of that, impairment has indeed been proven.

I will not reiterate all of the evidence of the two officers who testified. I have no doubt that they sincerely believed, that is to say subjectively, that the Defendant was impaired. The issue is, considering proof beyond a reasonable doubt, whether their belief had an objective basis as they were able to articulate it in their evidence. And that is an important way to put it.

Parts of their evidence about signs of impairment was clearly inconsistent. The breath technician observed no indication of slurred speech or movement balance issues on the part of Ms. Delorme. The only feature of potential impairment that they agreed upon, comparing their evidence, was the presence of a smell of alcohol and, obviously, the accident issue in evidence.

The arresting officer did not note anything unusual about her eyes at the scene. But it was the impaired walking from the wreck to the ambulance that crystalized his grounds and opinion that led to her arrest.

Putting aside what I believe is a reasonable inference that a person behind an airbag, walking immediately out of a damaged car might not walk with perfection, the evidence of the station videos I find supports the arguments of the defence. The Defence argues that the accused’s motor skills when she participated in the series of physical requirements in booking and the search were perfectly normal. They were observed to be. As was her speech on the video. The defence raised the question of how a person walking with arms tightly to their body could possibly be doing that to maintain balance in any event. I do not know what to make of that argument, but I am interested by it.

In any event, the fact of this unexplained accident alone does not support the proof of potential impairment, which was not clearly and sufficiently in my view articulated by the testimony of the two officers. It is a fact to be considered, certainly. I have, and I make, no inference whatsoever from her blood-alcohol concentration levels, regardless of whether the Certificate is ultimately admitted or not. Because, to state the obvious, there is no evidence of any opinion from a qualified toxicologist which might potentially establish impairment.

So in the result, dealing with the first issue, I agree, respectfully, with the argument by the Defence that the element of impairment has not been proven beyond a reasonable doubt. Certainly the evidence was sufficient for reasonable and probable grounds for the arrest. But it does not rise to the legal standard.

I will defer dealing with count one in the Information until I speak to my reasons with respect to the care and control issue, which I will deal with later on.

The second issue, which was extensively argued, is the admissibility of Exhibit 4, the Certificate of Analysis, and Exhibit 5, the instrument printout document from the 8000C. Now the essential argument which the Defence submits precludes admissibility of these documents is that, in their argument, it was not proven to be original. Either of them.

The impact of COVID-19, this pandemic, has necessitated the practice of criminal virtual trials in the interest of public safety. We all know this. It is no exaggeration to say that absent virtual trials, the use and acceptance thereof by counsel and the Crown, by staff, by MAG, and all justice participants including the judge, without their participation in these trials the administration of justice would have ground to a halt during the past 17 or 18 months. Normal trials and normal in-court procedure have had to adapt to the new reality of virtual trials.

The practice in virtual trials that I have attempted to follow, and what I believe I told counsel at the outset of this trial, was that I wanted both the electronic exhibit, that is the Crown’s book which was captured on the USB key and filed with the clerk, to be supplemented by a hard paper copy of the exhibit book, which was shown to the witnesses as the trial proceeded. I made no ruling beyond that. The witnesses, both counsel, my court clerk and the trial judge all attended by Zoom link from separate locations many kilometers apart. We were not in the same room. A virtual proceeding differs in many ways from an ordinary in-court proceeding.

What was shown to the officers and identified by them can never be categorically established as an original, as we understood that term to be traditionally, when we deal with evidence. Rather, it may be seen as another form of original for evidentiary purposes. Let me expand on that. My direction at the start of trial was to the filing by the Crown of a hard copy of the original exhibits – I did not say original, I said “original exhibits”. And that is what I believe happened. That is to say, paper copies of the exhibit book filed by the Crown, along with the electronic copies of the displayed virtual exhibit.

I did not make a ruling in my original exchange with counsel which dealt with or mandated receipt in evidence of the “original”, in the sense of an original being the very first document that was created and generated. That is, as I have referred to, the first Certificate written on by the breath tech and created and the hard printout from the Intoxilyzer 8000C. In addition to both electronic and paper forms of the exhibit book filed by the Crown, stand-alone copies of the Certificate of Analysis and the instrument printout were also filed by the Crown. They are marked as Exhibits 4 and 5, and I believe they are part of this record.

Now, in any virtual trial they could never be proven as “originals” in the sense which the Defence submits is required by law. That is an impossibility. The officers who testified remotely could not and did not testify that they were originals in the sense that they were the original, as I said, a first created document. What the officers did identify was an identical reproduction of what was created by Constable Plato. And the instrument printout was served upon the accused. All signatures on Exhibit 4, the Certificate, were identified, including the signed admission of service on the part of Ms. Delorme on November 10th, 2019. That is when she was released.

In my view, the police case number which appears outside of the margin in these two exhibits, as shown in the exhibit book, respectfully, has no bearing upon the validity of either the Certificate or the printout. It is a case identification number generated by the police and added later, and not part of the document as it is presented on the page. So respectfully, the appearance of the case number in the Crown’s exhibit book strikes me as superfluous. I agree with the Crown that it is implicit in accepting that a trial proceed by way of Zoom, by virtual trial, that the witnesses would be referred throughout to electronic virtual exhibits. There is no other way of proceeding. By their nature, virtual exhibits are all electronic reproductions.

My reference at the outset to the original exhibits was not to the originals as we traditionally have understood them to be. In fairness, and in future proceedings, it might be helpful if this distinction that I am talking about now, be made clear as the exhibits proceeded to be filed. However, this is the record that I have. That is the court record that I am dealing with. And the issue I have to determine is whether any of this makes any difference in terms of compliance with the Criminal Code. That is the point here.

The breath technician testified that however we might choose to describe these documents, they were accurate reproductions of what he gave to P.C. Beltrano to serve upon the accused. They were identical.

The law has evolved, in my view, significantly since the years after 1969 when counsel and Crowns argued about smudges on copies of documents that were served. I remember those years. I agree with the Crown that section 320.32 of the Criminal Code does not explicitly require proof that the Certificate was original in the traditional sense. That is to say the document that is filed. Neither the section itself nor the evolving case law, in my view, explicitly require proof that it is the original, in the narrow sense that they were the first generated or created documents.

It seems to me that Justice Hill of the Superior Court of Justice anticipated just this issue in several decisions that he was involved with, nearly 20 years ago. The requirement of the relevant section of the Criminal Code requires proof of service of an accurate and complete copy on the accused. That is the issue. I refer to His Honour’s decisions in R. v. Munshi. I will give you the spellings and sites as we go, Madam Reporter. Munshi is M-U-N-S-H-I. The citation is 2002 OJ 4281. The other case I am relying on and referring to is R. v. Naidu, N-A-I-D-U, and the site is 2004 OJ 2471. Justice Hill comments at paragraph 13 and 14 of Munshi, in relation to technological changes. His comments appear to be prescient in relation to the technological changes we are dealing with in 2021.

At paragraph 14 His Honour states as follows:

“Over time, as is apparent from the relevant jurisprudence, police forces have employed different methods of creating an original certificate and copies thereof – longhand copying, use of carbon copy paper, snapset forms, photocopying, and word processor-created and printed forms. Modernization of the copying process and technological change has led to the view that there can be duplicate originals” – I am emphasizing his words- duplicate originals which may reasonably be described as copies. Put another way, once the documents are identified and proven to be complete, identical and accurate, the distinction between originals and copies is not legally relevant. Nor is it legally necessary in terms of proof.

So respectfully, what I am saying is that this appears to me, at least at this point in our history, to be an argument about a distinction without a difference in law. What are electronic virtual exhibits, if not “duplicate originals”, in the words of Justice Hill. In my view, the Crown has satisfied what is required by law for their admission. And accordingly, Exhibit 4, the Certificate, and Exhibit 5, the printout, are admitted into evidence for consideration.

And lastly, and I think the deciding issue will be the care and control and operation issue. Now there is no direct evidence that the defendant operated the vehicle. There were no witnesses who contributed to this investigation. And there are no statements by the accused in relation to that, that were obtained.

I believe there are two different routes that the Crown can pursue to prove both of these offences. Either through proof of actual operation before the accident. And, to comply with the section, within two hours of being found in the car at the scene. That is when the officer arrived at 3:00 a.m. And that is in accordance with the wording of s.320.14(1)(b) of the Criminal Code. Or, alternatively, by proof of care and control of a vehicle while seated in the driver’s seat when the officer arrived.

The officer in charge received his 911 call on his radio at 2:55 a.m. He arrived on the scene by three o’clock, five minutes later. There were no civilian witnesses in attendance. It is deserted. There is no evidence of when the accident actually occurred. The 911 call is properly hearsay, but is part of proper grounds that needed to be put into evidence.

This was a serious motor vehicle accident. Ms. Delorme was stuck behind the deployed safety airbag. The driver’s door was affected to the extent that it was only opened by the officer with some difficulty. The car’s front end had been extensively damaged. And I conclude from the evidence it could not have been driven away as it was inoperable. The Crown seeks to rely on the presumption established by the occupying of the driver’s seat in the car by Ms. Delorme.

The evidence is clear that the extensive front end damage to this vehicle rendered it inoperable, as I have noted. The prospective driver had no ability to form any intention to drive the vehicle in that state. That would be an impossibility as she was effectively trapped inside the car. She really had no ability to get out of it or leave on her own, of her own free will in any event, given her situation.

I find that I agree with the submission on the part of defence counsel, Mr. Starkman, that the presumption is effectively rebutted on these facts. And I also agree that a risk of danger does not come into play in these particular circumstances. The damaged vehicle was plainly visible in a well illuminated commercial area. So that is not in play.

I thank counsel for their extensive reference to many cases. But I believe my conclusions are consistent with the principles set out in the careful analysis of Superior of Court of Justice Durno in R. v. Amyotte. Again I will spell that for my reporter, A-M-Y-O-T-T-E. The site for that is 2009 OJ No. 5122.

The remaining other route open to the Crown is proof of actual operation to prove the guilt on count two. The Crown makes a strong argument that the accident circumstances support an inescapable inference that Ms. Delorme was driving immediately prior to the accident. A strong circumstantial inference. That is the sole evidence of potential operation that I have to consider at this point.

The accused was found, as I have already noted, trapped in the driver’s seat of this vehicle. The driver’s door could not open due to the damages.

I find the argument by the Crown in this regard compelling. That it is indicative of a circumstantial inference. But, even if I am persuaded by that sole bit of evidence as to operation, one necessary element of the alleged offence in count two remains unproven. And that is proof that such alleged driving was within the preceding two hours immediately before 3:00 a.m. when the officer arrived.

When the offence commonly known as “over 80” was recently re-worded, this created a relating back timeframe. It broadened the avenues available to the Crown to prove this offence in terms of the temporal issues. But in my view it remains a key element of this newly worded offence which must be proven to the legal standard of beyond a reasonable doubt.

The 911 call at 2:55, as I have already noted, strictly speaking was hearsay. It commenced the investigation, and it provided no specifics in any event of when the accident occurred.

Now, is it likely that this accident occurred within two hours prior to 3:00 a.m. when the officer arrived? Probably. But all the offence elements must be proven to the legal standard. With great respect “likely” or “probably” are insufficient when it comes to proof beyond a reasonable doubt in a criminal trial.

So I want to thank both counsel, as I have already said, who presented their cases and arguments very vigorously and with great skill, They were a great assistance to me and I sincerely thank them. However, for all of these reasons I find that I have concluded the charges before the court have not been proven beyond a reasonable doubt and they must be dismissed.

FORM 2

Certificate of Transcript (Subsection 5(2))

[Evidence Act](https://www.ontario.ca/laws/statute/90e23)

I, Wendy Crozier, certify that this document is a true and accurate transcript of the recording of R. v. Delorme in the Ontario Court of Justice held at 102 East Main Street, Welland Ontario, taken from Recording No. 4521-CRT2-20211026-084805-6, which has been certified in Form 1.

November 4, 2021 Wendy Crozier ACT ID: 2004967037 AG 0087 (rev.07-01)