ONTARIO COURT OF JUSTICE

CITATION: R. v. Alphonse, 2021 ONCJ 697

DATE: July 4, 2021

COURT FILE No.: Brampton 3111 998 18 15244

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TROY ALPHONSE

Before Justice G.P. Renwick

Heard on 28-30 June 2021

Reasons for Judgment Released on 04 July 2021

S. Skoropada....................................................................................... counsel for the Crown

R. Sahota.......................................................... counsel for the defendant Troy Alphonse

RENWICK J.:

INTRODUCTION

[1] The Defendant faces two counts of drinking and driving (impaired operation and excess blood alcohol concentration, known as “over 80” or “excess BAC”), under the former statutory regime in the Criminal Code.

[2] The Defendant brought a Charter Application to challenge the admissibility of the evidential breath readings taken from the Defendant by police. It was initially alleged that the police violated the Defendant’s ss. 8, 9, and 10(b) Charter rights. During oral submissions, the s. 9 argument was abandoned by the Defendant.

[3] The parties agreed to hear the evidence on the trial alongside the evidence of the Charter Application during a “blended” voir dire. At the conclusion of the prosecution’s case, the Defendant did not call any additional evidence on the Application or any evidence on the trial.

[4] It is alleged that the police did not provide the Defendant with the informational component of his s. 10(b) Charter right to counsel “without delay,” and that the evidential breath sampling was not performed “as soon as practicable.” As will become clear below, I find that there is a breach of both sets of Charter rights and I would exclude the results of the Defendant’s breath sample tests.

[5] On the trial proper, the Defendant asserts that his identity as the driver of the red Honda is not established beyond a reasonable doubt, and were that not the case, there should be a reasonable doubt that the Defendant was impaired in his ability to operate his motor vehicle due to the prior consumption of alcohol.

GOVERNING LEGAL PRINCIPLES

[6] The Defendant applies for Charter relief. Generally, the Applicant has the onus to establish his allegations on a balance of probabilities. However, the parties agree that the breath sample testing was a warrantless search purportedly authorized by statute. In this case, the prosecutor must establish on a balance of probabilities that the police complied with the statutory regime authorizing the breath sampling. If the Charter of Rights and Freedoms has been violated, the exclusion of evidence is not automatic. In order to have the breath test results excluded from the trial, the Defendant must establish that it is more likely the case than not that the admission of this evidence in the circumstances of one or more Charter violations would tend to bring the administration of justice into disrepute.

[7] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that Mr. Alphonse was the driver of the Honda motor vehicle at the relevant time, he will be acquitted of these charges.

[8] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^1] If after considering all of the admissible evidence I am sure that the Defendant committed an alleged offence I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[9] In this case, the evidence of identity, for example, is circumstantial. In order to be satisfied that the identity of the driver has been proven to be the Defendant beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence.[^2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its burden.

[10] In the next part, I will outline some of the evidence and provide an assessment of the evidence, with references to specific portions of the testimony. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, I have reviewed the exhibits, I have had access to the digital record of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

THE EVIDENCE AND FINDINGS

[11] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital recording. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete.

[12] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[13] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[Section 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[14] I find as a fact that Constable Emilio unnecessarily delayed the provision of the Defendant’s s. 10(b) Charter right to counsel. It is uncontested that there was a 10 minute delay after the Defendant’s arrest before the officer provided the informational component of the right to counsel.

[15] During this time the officer testified that he did a pat-down search of the Defendant, he handcuffed him and placed him into the back of his police cruiser, he performed some “checks” of the Defendant on his police computer, and he also executed other duties in relation to the arrest and the scene of the motor vehicle collision he had attended. P.C. Emilio testified that after he arrested the Defendant he made arrangements for the attendance of a qualified technician (he knew he had arrested the Defendant for impaired driving and he would be taking the Defendant back to a police station for breath sample testing), he called for a tow-truck to remove the Defendant’s car, he requested a second officer to attend to take witness statements, he spoke to a Sergeant who had arrived, and he made arrangements for traffic to flow around the scene of the motor vehicle collision.

[16] There is no doubt that police officers fulfill many functions after arresting someone. The cursory search of the Defendant, the handcuffing, and placing the Defendant safely into police custody are all necessary actions. In this case, there is not a single other duty that P.C. Emilio did that took priority over the provision of s. 10(b) rights. So, although not all of the delay of ten minutes was unacceptable, once the Defendant was safely lodged into the police car, he ought to have been immediately told that he had the right to speak to a counsel of his choice. There was nothing that was more pressing in terms of the health or safety of anyone, or the protection of property, or the preservation of evidence that should have taken priority over the simple, momentary act of advising the Defendant of his s. 10(b) rights.

[Section 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[17] The Defendant alleged that by failing to take his breath samples as soon as practicable, the police did not comply with the statutory regime which authorized the warrantless seizure of evidence. The prosecutor responded that there was no unacceptable delay and in any event not every moment prior to the breath sampling needs to be accounted for as long as the police actions are reasonable in all of the circumstances.

[18] Again, there is no controversy as between the parties that P.C. Emilio delayed eight minutes before providing the Defendant with his s. 10(b) rights and then a further 10 minutes before formally demanding the Defendant to accompany him to a police station to provide suitable samples of his breath into an approved instrument.

[19] The evidence of P.C. Emilio is dispositive. I accept his evidence. It was uncontradicted. He testified that after reading the Defendant his rights, he delayed a further 10 minutes to make a formal breath demand until a copy of the “yellow notes” with the formal demand could be brought to him. In fact, he testified that P.C. Brunino arrived at 1:54 am (some six minutes post rights to counsel) to give him the “yellow notes” with the formal wording of the breath demand. The delay until he made the formal demand, another four minutes, was never explained.

[20] There was only a two minute delay until P.C. Emilio left the scene once he had made the formal breath demand. There was no issue taken with this time period or the time it took to drive to 12 Division of Peel Regional Police.

[21] Once at the police station, P.C. Emilio testified that he had to wait from 2:21 am until 2:33 am before he could bring the Defendant into the police station. He explained that another person was already in custody inside, and he had to wait until that other suspect had been dealt with. This was a reasonable explanation for this delay.

[22] P.C. Emilio gave the qualified technician his grounds at 2:33 am until 2:44 am.

[23] There was no evidence respecting the delay until the Defendant was brought into the Breath Room at 2:47 am, however, this delay is not significant in the overall calculation of time.

[24] From the time when the Defendant attended inside the Breath Room until he provided his first sample is not in issue. The Defendant gave his first breath sample at 3:02 am.

[25] P.C. Purdy testified that he had to wait 17 minutes in accordance with his training and the manufacturer’s recommendations for the instrument he was using in between the taking of the first and second breath samples. The second breath sample was initially sought at 3:27 on the breath room video, some 24 minutes after the first sample was taken. It took the Defendant several tries to provide a second sample over a 90 second period. I have not relied upon this momentary delay in coming to any conclusions in this matter. There is no explanation for the additional seven minute delay beyond the appropriate waiting period in between breath sampling.

[26] I find that the delay of 10 minutes by P.C. Emilio after the arrest and before he made a formal breath demand, and the delay of an additional seven minutes before the second breath sampling, for which there was no explanation given by the breath technician, establish that the taking of the Defendant’s breath samples were not completed “as soon as practicable.” Although these time periods are brief, they added to the overall delay and they were unnecessary for any legitimate police activity.

[27] P.C. Emilio testified that he “would have” told the Defendant that he was going to come back to the police station and he would have said that in order to obtain his arrestee’s cooperation. He testified that he said this in every case. However, it is unrealistic to rely upon his general practise when he had no notation of having said that nor any actual recollection of having performed that general practise in this case. Moreover, if he had done that, why did the officer delay for 10 minutes to await a more formal demand if the requirements of the demand had already been fulfilled. In the end, I am not satisfied that P.C. Emilio told the Defendant he would be brought to the police station for breath testing until he read the formal breath demand.

[28] Constable Purdy was never cross examined about the delay between the breath samples. No explanation ever emerged for the delay that exceeded both the manufacturer’s recommendations and the officer’s training. It appears that the qualified technician simply lost track of time given the early morning hour.

Section 24(2) Analysis

[29] The only evidence sought to be excluded from the Defendant’s trial were the results of the breath sampling analysis.

[30] Having dealt with the Defendant’s arguments concerning the nature of the s. 10(b) violation and the police conduct leading up until his breath samples were taken, I will now turn to whether or not the admissibility of the breath sample results in the Defendant’s trial would bring the administration of justice into disrepute.

[31] The parties agree that the three-prong test from R. v. Grant [^3] governs the exclusion of evidence under s. 24(2) of the Charter.

[32] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.

[33] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and

iii. Society’s interest in the adjudication of the case on its merits.

[34] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.”[^4]

Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing State Conduct

[35] This case involves a violation of two distinct Charter rights that bookend the police interactions with the Defendant.

[36] The evidence established that the police failed in a fundamental way to inform the Defendant about his right to counsel, without delay. Though I do not conclude that the violation of the right was deliberate, P.C. Emilio’s evidence did not build confidence that he truly appreciated the importance of this right, nor did he initially make any significant attempt to prioritize it. Instead, the Defendant’s right to counsel was just one more duty the officer had to perform that early morning.

[37] In respect of the overall delay in taking the Defendant’s breath samples, this too demonstrated poor judgment or carelessness on the part of the police rather than intentional conduct that was constitutionally compliant.

[38] The violations in this case are of more than modest seriousness. The seriousness of the s. 10(b) violation is amplified by the lack of any sense of urgency in completing the investigation of the Defendant.

[39] In these circumstances, I find that this factor pushes strongly toward the exclusion of the breath analysis results.

The Impact of the Breaches Upon the Defendant’s [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests

[40] In this case, the Charter violations were avoidable. It bears observing that:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.[^5]

[41] The Defendant was held, handcuffed in the police car, without any sense of the next steps or his entitlements for eight minutes and an additional 10 minutes before he learned what was going to happen next. This is not a trivial breach of his rights. Until he was given the formal demand, he would not have known what was going to happen, and whether or not he would be released from the scene. Fortunately, the police did not attempt to elicit any incriminating evidence during the delay before the Defendant was given the information about contacting a lawyer.

[42] The prosecutor submitted that the impact of the s. 10(b) breach was mitigated, because the Defendant never actually wanted to speak to a lawyer that morning. That misses the point. Police have no way of knowing before providing the informational component of the right to counsel what the detainee’s ultimate choice will be. The informational component of the s. 10(b) right is not dependent upon the detainee’s choice.

[43] In R. v. Suberu, 2009 SCC 33, [2009] SCJ No. 33 at para. 41, our highest court spoke of what is meant by the words, “without delay,” found within s.10(b) of the Charter:

41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[44] The effect of not being able to know one’s rights would undoubtedly have impacted upon the Defendant’s sense of security and psychological well-being. This violation is also compounded because the police did not diligently perform their duties and complete their investigation in compliance with the only statutory authority that permitted the continued detention of the Defendant.

[45] Situating the impact of the Charter violations also involves a consideration of the effect of the breach. In this case, the Defendant was required to submit to breath sampling for analysis. This process has repeatedly been found to be “minimally intrusive,” despite the attendant costs to the detainee’s liberty, security of the person, and psychological well-being.[^6]

[46] These violations although not deliberate, do not establish good faith.[^7] I find in the Defendant’s circumstances, and in light of any real explanation for the failures in this case, this factor also strongly favours exclusion of the breath testing results.

Society’s Interest in the Adjudication of the Case on its Merits

[47] In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:

[48] The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

[49] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.[^8]

[50] The breath testing results are reliable and necessary to prove one of the two counts before the court. This militates in favour of admitting the breath analysis.

[51] The prosecutor submits that the breaches in this case are minor and technical. I disagree. I have assessed these violations as moderately serious. While it was not intended, it was foreseeable and preventable. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. To be informed of one’s right to counsel without delay is fundamental and at the core of protecting the autonomy, liberty, and security of our residents from the authority of the state.

[52] There is no evidence that the failures of Constables Emilio and Purdy are long-standing, widespread, or systemic within the Peel Regional Police. Nonetheless, I tend to the view that mere disapprobation of their behaviour by the court is incommensurate with the misbehaviour occasioned.

[53] I find that the long-term effect of admitting the breath readings in the circumstances of this case would bring the administration of justice into disrepute.

IMPAIRED OPERATION COUNT

Proof of Identification

[54] Constable Emilio was uncertain how and when he was provided with the Defendant’s driver’s license. In cross-examination he testified that he received the Defendant’s driver’s license in the ambulance, or after he had arrested the Defendant. This lack of certainty was part of the attack upon the prosecutor’s case respecting identity of the Defendant as the person involved in the motor vehicle collision and arrest. In the end, I do not find that I must reject all of P.C. Emilio’s evidence merely because he was uncertain at which point he received the Defendant’s driver’s license. There was no real contest or cross-examination on the identification of the driver of the Honda. There was no evidence that there was any other civilian vehicle stopped in the area besides the red Honda, other than the white Mercedes SUV driven by Inderpal Dhanoa.

[55] I find that at some point that evening, the male who was in the ambulance was taken by P.C. Emilio and arrested for impaired operation on the basis that the ambulance driver told P.C. Emilio that he had taken that male from the red Honda that had apparently been involved in the collision with the Mercedes. I find as a fact that P.C. Emilio received the male’s photographic driver’s license and he was satisfied that the male was the person he was dealing with. I am also satisfied beyond a reasonable doubt, based upon all of the direct and circumstantial evidence that the male arrested by P.C. Emilio is the same male that provided his breath samples to the qualified technician. I am further satisfied on all of the circumstantial evidence and on the basis of the breath room video (exhibit 2) that the large male with brown skin and dread locks who provided breath samples is the Defendant, who is also not diminutive, and has brown skin and longer dread locks (which is likely accounted for by the passage of time).

[56] I recognize that accident scenes can be chaotic at times. The police arrive after the fact. In this case, Brampton Fire and Peel Region Paramedics were on scene. However, it was after 1:00 a.m., there were not that many people involved in or at the collision scene, and there is absolutely no evidence to suggest that P.C. Emilio did not properly identify the suspect with whom he was dealing that night. There is no suggestion that the person who sat in the courtroom and pleaded not guilty is anyone other than the person who was arrested for impaired operation. Every circumstantial piece of evidence suggests this. There is no alternative suspect or theory offered.[^9] I believe P.C. Emilio when he testified that he recognized the Defendant on the video screen of the virtual courtroom. P.C. Emilio spent over two hours with the Defendant on 09 December 2018 and although his is a cross racial identification of a stranger, he was not challenged at all on this aspect of his testimony.[^10]

[57] I am also mindful that none of the civilian or emergency service personnel who testified, other than P.C. Emilio could even point to the Defendant in court as the person that had operated the red Honda that early morning. However, I rely completely on the testimony of the paramedic, Christopher Hackett, to find that the male he assisted into his ambulance was the male taken before the breath technician based on the abrasion on the male’s forehead as observed by both paramedic Hackett and the qualified technician, Marc Purdy. This abrasion was likely caused by the deployment of the driver’s air bag, which was also noted by paramedic Hackett.

[58] During submissions, much was made of the inability of Inderpal Dhanoa, Omkar Dhanoa, firefighter Gordan, and paramedic Hackett to identify the Defendant as the operator of the red Honda. However, I accept the testimony of Inderpal Dhanoa that after the second collision with his car he turned back to look at his daughter and noticed the car that had struck him. He described how that car was reversing onto the centre median and going into the traffic lanes for the opposite direction. He stopped his Mercedes and eventually tried to go toward the red Honda. There were tire marks crossing the centre median. Eventually, Mr. Dhanoa was prevented from getting close to the Honda by fire personnel.

[59] Although the Honda was stopped 300-400 m away from the Mercedes in the opposing lanes of traffic, given it’s resting position, the damage to the front end, the tire marks observed by Inderpal Dhanoa, and the totality of the emergency personnel testimony, I am satisfied that the only conclusion that I can come to on all of the evidence is that the driver of the red Honda had struck the Mercedes from behind and then attempted to leave the scene by travelling in the opposite direction. This conclusion flows from the combined evidence of Inderpal Dhanoa, P.C. Emilio, and paramedic Hackett.

[60] The state of the Defendant (the driver of the red Honda) accords with the circumstances of the collision. The Defendant was found in a car with front end damage, his driver’s air bag had deployed, he complained of a sore leg, and he had an abrasion on his forehead. His Honda was located in a spot not far from the scene of the collision, facing the opposite direction, resting at or against a hydro pole. There is evidence from Inderpal Dhanoa, which I accept, and which explains how the Honda came to be where emergency personnel found it.

[61] In the end, on the basis of all of the evidence, the only conclusion I can come to respecting the identity of the driver of the vehicle that collided into the rear of Mr. Dhanoa’s Mercedes is that the driver of the red Honda from which the Defendant was taken by the fire personnel and paramedics into the ambulance is the same male who was arrested by P.C. Emilio and from whom breath samples were taken by P.C. Purdy, and that male is the same person who attended the court and appeared before me.

[62] In the end, after a consideration of all of the evidence, I am satisfied beyond a reasonable doubt that the Defendant drove the red Honda which collided twice into the rear of the white Mercedes.

Proof of Impaired Operation

[63] Inderpal Dhanoa testified that he was travelling about 50 km/hr when he was rear ended twice for no apparent reason. He testified that the roads were clear and the weather was good. His vehicle was plainly visible that early morning. There is no suggestion that the Mercedes did not have illuminated tail-lights as it travelled. There has been no explanation for the two collisions into the rear of the Mercedes by the Honda.

[64] The Defendant was found in the driver’s seat of his Honda by fire and EMS personnel. Paramedic Hackett described his initial interactions with the driver, which he had noted in the Ambulance Call Report: the patient was not forthcoming, he did not say how the accident happened, he stated that he was trying to go home to Markham, he kept asking the paramedic to close the driver’s door, and he kept attempting to reach for the driver’s door, without success. During his interactions with the driver, paramedic Hackett noticed he was slurring his words and he was not forming complete sentences.

[65] The Defendant was assessed by paramedic Hackett. The paramedic measured the Defendant’s blood pressure, took his oxygen level, assessed his heartrate, checked his blood sugar, and observed the Defendant’s pupils. He thoroughly checked the Defendant from head to toe, twice. The Defendant denied having lost consciousness. The Defendant had a “superficial” mark approximately 1” x 1” on his forehead, which the paramedic described as an abrasion. There was no evidence or signs of a concussion or any significant head injury. This evidence was not rebutted or challenged in any meaningful way and I accept it as truthful and accurate in all respects.

[66] This witness was not qualified as an expert, however, he performed a head to toe assessment of the Defendant and took his vital signs in his role as a trained paramedic. The paramedic saw no signs of a head injury besides the abrasion he noted on the Defendant’s forehead. There has been no evidence that the Defendant was suffering that morning from a head injury. I find as a fact that the Defendant did not suffer a head injury based upon the lack of any physical signs of a head injury, the lack of a complaint of a head injury, and the lack of any medical or other evidence to suggest a head injury.

[67] The paramedic did note that the driver’s chief complaint was his left leg. This had been reported also to the firefighter by the driver. The paramedic palpated the area. He found no evidence of trauma or injury. The leg had good range of movement and the paramedic did not note any difficulty bearing weight on the leg. This evidence was never contradicted and I accept that although the driver may have felt pain in his left leg, his leg was not injured in any functional way.

[68] I accept that part of paramedic Hackett’s testimony respecting the behaviour of the Defendant: he was not oriented to the day or date, he was lethargic, confused, unsteady on his feet, he was not walking in a straight line, and he had poor hand/eye coordination. He believed the driver was under the influence of an intoxicant. Possibly due to paramedic Hackett’s poor sense of smell, he did not detect any smell of alcohol. In his 10 years as a paramedic (seven at the time), he said he has never been able to smell alcohol.

[69] When I couple this evidence with the lack of any reason for the cause of a rear end collision, twice, with the Mercedes, the attempt to change direction and drive away, the revving of the engine heard by Omkar Dhanoa when the vehicle had come to rest, and the physical signs of impairment observed by P.C. Emilio, including the smell of alcohol coming from his breath, I am satisfied that the only conclusion that I can come to on a totality of the evidence is that the Defendant was completely inebriated by alcohol and he was impaired by the prior consumption of alcohol in his ability to control his motor vehicle, which completely accounts for his poor driving both before and after the collisions with the Mercedes.

[70] The evidence of the breath room video supports my conclusion and all of the other evidence consistent with alcohol impairment. The Defendant seems to be holding the wall while he awaits his breath testing, as if to keep himself from falling. His speech is mostly slurred and slow and lacking in trajectory or meaning.[^11] At 2:54 am on the breath room video the Defendant is still holding the wall. The breath technician asks him “what’s wrong,” and he does not answer. The Defendant burps audibly at 2:56:40 and apologizes. The officer asks the Defendant to let him know if he is going to throw up.

[71] When asked questions in between the breath tests, the Defendant answers incoherently with rambling, slurred speech:

I just want you to get to the next test. Whatever these questions lead you to. I’m fully impaired, to the questions. Get me to the next questions. I’m fully impaired to the questions that lead me to the questions that you are asking me at this moment…

[72] The Defendant also admitted to P.C. Purdy that he was coming from a party in Vaughan and going home to Markham (which confirms what he told the paramedic).

[73] Even if I did not see the breath room video, I had no difficulty given the evidence I accept as accurate in finding that the Defendant was in no condition, due to alcohol intake, to drive that morning. The breath room video confirms all of the other evidence of alcohol impairment of the Defendant’s ability to drive. It is an inescapable conclusion on all of the admissible evidence that the Defendant was impaired by alcohol in his ability to drive and I am so satisfied, beyond a reasonable doubt.

CONCLUSION

[74] I have excluded the breath testing results and there remains no evidence for the excess BAC charge. The Defendant is acquitted of that count.

[75] I am satisfied beyond a reasonable doubt that Troy Alphonse was impaired by alcohol when he drove a motor vehicle after 1:00 am on 09 December 2018 and I find him guilty of this count.

Released: 04 July 2021

Justice G. Paul Renwick

[^1]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [^2]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56. [^3]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. [^4]: R. v. McGuffie, 2016 ONCA 365 at para. 62. [^5]: R. v. Rover, 2018 ONCA 745 at para. 45. [^6]: For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32. [^7]: R. v. Singh, [2020] O.J. No. 985 (S.C.J.) at para. 24. [^8]: McGuffie, supra, at paras. 62-63. [^9]: I recognize that a Defendant never has to negate the prosecution’s case or try to prove his innocence. He is presumed innocent until proven otherwise beyond a reasonable doubt. [^10]: Interestingly, P.C. Purdy could not identify the person he took breath samples from when asked. [^11]: The Defendant admitted that his utterances on the breath room video were voluntary.