Ontario Court of Justice

Date: 2022 12 05 Court File No.: Toronto 20-75003840

Between:

HIS MAJESTY THE KING

— AND —

GERARD GOPAUL

Before: Justice David S. Rose

Heard on: August 29, 30, November 23, 2022 Reasons for Judgment released on: December 5, 2022

Counsel: Ms. Wahlia............................................................................................ counsel for the Crown Mr. Kiss............................................................. counsel for the defendant Gerard Gopaul

Rose J.:

[1] Mr. Gopaul appeared before me for trial on 4 charges: Impaired and 80 plus Operation, Take Motor Vehicle without owner’s consent, and possession of cocaine. All charges related to a single incident on April 7, 2020.

Evidence

The Car

[2] Sarah Culbert drove a car her parents loaned her. Her father was repairing her BMW, so her parents leant her a white RAV 4 SUV. That car was owned by Sarah’s mother Donna Culbert.

[3] Sarah Culbert had known Mr. Gopaul as a neighbour for about 10 years. He came over the evening before and slept on the couch. The two had been drinking tequila and beer. She could not remember precise amounts but thought that the two had had two shots of tequila and 5 beers. At some point on April 7 she fell asleep on her couch, waking up around 7:30 pm. Mr. Gopaul was not there. There had been a text message from him around 4:30 asking her what kind of ice cream she wanted but she did not reply. Around 8:30 pm she got up to go to the kitchen and noticed through the front door window that her car was not parked where it normally was. She was upset so she called and texted Mr. Gopaul to say that he must return the car immediately. He did not pick up the phone. Unbeknownst to her Mr. Gopaul had by then crashed her car and was in police custody.

[4] In her evidence she didn’t immediately call the police to report the car stolen because she hoped that he would just return the car. As she said, “I didn’t want to call the police on a friend of 10 years” and on April 7 she and the defendant had been drinking at her house.

[5] Sarah Culbert’s mother Donna confirmed that she was the registered owner of the RAV 4 and that her daughter Sarah had permission to use the car but Mr. Gopaul didn’t.

The Accident

[6] Angelo Aritsakis was on his way to pick up his wife that afternoon and saw a White car on Bermondsey right at the fence. He paid little attention to it, but when he was on his way back with his wife he noticed that there was a person in the white car slouched over. The door was locked and the male driver was unresponsive. The wheels were spinning and the tires were smoking. It looked like the car mounted the curb, and hit the fence. The car was quite stuck, but the driver was unresponsive. His wife called 911 and he waited at the scene to see the police arrive. The driver never got out of the car, and the car was locked the whole time he was there.

[7] PC Gobl was working with his training officer PC Asselstine that afternoon. Both were called to a single motor vehicle collision at 175 Bermondsey. PC Gobl had been a police officer for less than a year.

[8] When PCs Gobl and Asselstine arrived on scene they found PC Epperson, who had arrived a few minutes before. As it turned out Epperson was on patrol north bound on Bermondsey near Eglinton and responded to the call for service immediately, with the EMS ambulance right behind her. She parked her police car near the crash site. The dash cam from her car records the initial police interaction with Mr. Gopaul when he is found in the RAV 4 until the time he is taken out and walks to PC Gobl’s car which is parked behind Epperson’s.

[9] What is undisputed is that a white SUV is shown on the video pushed into a fence facing in an easterly direction. The vehicle appears to have mounted the curb on Bermondsey, run over a fire hydrant and TTC stop pole before coming to a stop in the fencing. It had extensive front end damage. The video commences with a number of fire personnel lingering. Once Gobl and Asselstine arrive they speak with PC Epperson on the sidewalk adjacent to the SUV and then walk to the crash site together. PCs Gobl and Asselstine go to the driver side and speak with Mr. Gopaul who was alone in the car. PC Epperson is seen at the passenger side shining her flashlight through the windshield.

[10] PC Epperson testified that when she had arrived the RAV 4 had a strong burnt odour about it. She said that the wheels had been spinning in the ground to the point where the rubber became liquified and sprayed rubber over the side of the car, which she saw.

[11] The police on scene received information from the paramedics that Mr. Gopaul had no apparent need for further medical attention. PC Gobl testified to speaking with Mr. Gopaul. Gobl was wearing an N95 mask because of the pandemic, but could still smell a faint odour of alcohol coming from the car. Mr. Gopaul had red glossy eyes, and his pauses were longer than normal. He had slurred speech and did not know how he got into the collision. He identified himself to PC Gobl but had no documents. Based on those observations PC Gobl read him an ASD demand. It was 19:38.

[12] The video records PC Epperson shining a light into the cabin and telling PC Gobl that she could see a knife in Mr. Gopaul’s pocket as he sat in the driver seat. Gobl is heard saying that Mr. Gopaul should put the knife on the passenger seat, which apparently he did. Mr. Gopaul got out of the car and walked to the sidewalk and then south to PC Gobl’s car, passing the dash cam of PC Epperson.

[13] What is faintly recorded is Mr. Gopaul being subjected to a pat down search by PC Epperson at 1941. Her evidence was that the pat down search was incidental to arrest even if it was before Mr. Gopaul provided an ASD sample. Based on the evidence before me, there is no evidence of an arrest before Mr. Gopaul’s ASD sample was taken. Indeed, over the next 3 – 4 minutes later he provided ASD samples, and the last one registered a fail. He was then arrested at 19:45.

[14] After arrest Mr. Gopaul was searched incident to arrest. That search of his pockets revealed a money clip with 2 cell phones, a Government of Canada ID Card, several hundred dollars, a small scale, and notably two small containers. One was a pink Pepto Bismol bottle, and the other a small Excel breath mint container. Epperson opened them and found packages of a white powdery substance which she believed to be cocaine. She asked him what they are, what is she looking at and Mr. Gopaul said he was a junkie and that it is cocaine.

[15] After the search Mr. Gopaul was given rights to counsel at 20:00, a caution, and at 20:01 an Approved Instrument Demand. Notably Mr. Gopaul was never arrested, cautioned, or given rights to counsel for the drugs found. Mr. Gopaul said that he wanted to speak to a lawyer.

Arrival at the 41 District Police Station

[16] Mr. Gopaul arrived at the police station at 20:19, some 34 minutes after his arrest and was booked in at 20:36. That meant appearing before Sgt. Ho who completed a Covid questionnaire. This was early in the pandemic. PC Gobl told Sgt Ho that drugs were found on Mr. Gopaul and asked for a more thorough search of him because he was concerned for safety in custody. This was tied, in PC Gobl’s mind, to the pocket knife and drugs found in his pocket. Gobl wasn’t certain that they had found all the drugs. As PC Gobl testified he just asked for a thorough search, because he was inexperienced.

[17] The booking video played at trial shows Sgt. Ho telling Mr. Gopaul that he was under arrest for being over the legal limit, and that based on the drugs he would authorize a more thorough search.

[18] A strip search was completed by two male officers – PCs Gobl and PC Lawson – in a private room from 20:42 to 20:56. PC Gobl could not in his evidence remember the details about the strip search. It is unclear on the evidence why the strip search was needed. He had no memory of how it was completed other than one area was revealed at one time. Evidence about the detail of the strip search was given by Sgt. Lawson, (who was a Police Constable that night) and appears to have been in charge of the strip search. Sgt. Lawson testified that Mr. Gopaul took his clothing off himself piece by piece until he has naked from the waist down. He exposed his genitalia to the officers himself and was cooperative during the strip search. Nothing of interest was found during the strip search either on his person or his removed clothing. It took about 9 minutes to complete the strip search.

[19] Both Sgt. Ho and Sgt. Lawson testified that the TPS policy regarding when to do a strip search changed after Mr. Gopaul’s arrest. It appears that whatever the recent policy is, it has resulted in many fewer strip searches. With that said, Sgt. Ho was adamant in his evidence that Mr. Gopaul would have been searched after the new policy was implemented even if the new TPS policy increased the threshold for when a strip search should be done.

[20] Once the strip search was completed Mr. Gopaul was taken back to the booking hall to complete the intake interview with Sgt. Ho. Money was counted out and Mr. Gopaul explained that the number for his lawyer is in his phone. He tells the officers present that his lawyer is Daniel Murphy. The phone number for Mr. Murphy was taken from his phone and PC Asselstine called at 20:55 it but got the message that the number was no longer in service.

[21] Mr. Gopaul was then brought to an interview room and given his phone. Mr. Gopaul was permitted to message Mr. Murphy on face book messenger. The officers waited 20 minutes for Mr. Murphy to call back but no call was received. At 21:44 PC Asselstine left a message for Duty Counsel on behalf of Mr. Gopaul. Duty Counsel called back at 21:53.

[22] After duty counsel called back PC Gobl escorted Mr. Gopaul to the phone booth and observed him to be unsteady on his feet. The call with duty counsel lasted from 21:53 to 22:03, after which he was taken directly to the breath room.

[23] Breath tests were taken from Mr. Gopaul at 22:19 and 22:45 which, when truncated, obtained readings of 120 and 120 mg of alcohol in 100ml of blood.

[24] The Crown entered evidence that the substance found on Mr. Gopaul by PC Epperson tested as cocaine.

Lost videos

[25] The Crown also called the officer in Charge of the case, DC Parkin, who testified that two in car camera videos which were recorded during the initial investigation of Mr. Gopaul were not available when he tried to get them ready for disclosure purposes. He testified that all videos were received by the Crown on September 2, 2020 but when he tried to get second copies of them in May 2022 two had not been kept. It appears that the initial disclosure package of videos was not complete. It did not have all 4 videos. It is unclear on the evidence why the full video package was not kept. The suggestion by DC Parkin is that two of the videos were not labelled as criminal videos by the investigation officers and therefore were erased after two years, but DC Parkin was quite fair that he did not know for sure.

[26] The defence called no evidence.

Issues

[27] The Crown bears the onus of proof. Beyond that the defence argues that the evidence supports a finding of a broad array of Charter violations. Some are valid, some are not.

Charter Application – S. 8.

i) The ASD Demand

[28] The defence argues that PC Gobl had no reasonable suspicion and therefore the ASD Demand at 19:38, and the ASD procedure therefore violated Mr. Gopaul’s rights to be free from an unreasonable search or seizure under s. 8 of the Charter.

[29] I would reject this argument for two reasons. The first is that when PC Gobl made the ASD demand he had seen Mr. Gopaul seated in the driver’s seat of a crashed motor vehicle. PC Gobl observed red glassy eyes and slurred speech. He had difficulty locating his documents. PC Gobl was fair in his testimony that these indicia could have been from the accident, but a police officer has a legal basis to make the ASD demand if they have a “mere suspicion” see R. v. Einarson 2004 ONCA 19570, 184 O.A.C. 176 at par. 11. The threshold is not a high one because the ASD testing procedure is a quick and reliable means to determine if reasonable and probable grounds to arrest are present, see Einarson (supra) at par. 12.

[30] Given the unexplained accident, and indicia of impairment PC Gobl easily had a reasonable suspicion under s. 320.27(1), and the argument fails on the evidence.

[31] A second reason why the argument fails is that PC Gobl didn’t need an individualized suspicion. He had an ASD with him at the roadside when he approached the crashed car and it is clear on the evidence that he was called to the scene to investigate a motor vehicle collision. The immediate availability of the ASD and the traffic collision investigation furnished PC Gobl with a lawful basis on which to make the ASD demand under s. 320.27(2). Under that section no individualized suspicion is necessary if the officer has the ASD with him or her and they are investigating under an Act of Parliament or a legislature.

[32] For these reasons the first limb of the Charter Application is easily dismissed.

ii) The initial pat down search

[33] Mr. Gopaul alleges that the initial pat down search by PC Epperson violated his rights under s. 8 of the Charter. The defence alleges that there is nothing in the evidence which furnished grounds for the initial search prior to Mr. Gopaul providing an ASD sample. I disagree.

[34] I find as a fact that when Mr. Gopaul was seated in the crashed car he was discovered to have a knife in his pocket. This was shown in the dash cam video which has PC Epperson asking Mr. Gopaul to put the knife on the seat next to him, which he does. There is nothing in the evidence which provides a basis to find that his possession of the knife was improper or illegal. It appears to have been a plain pocket knife, but it is also uncontroverted that he did have a knife on him.

[35] I also find that Mr. Gopaul was detained and not arrested until he failed the ASD test 19:43. The initial pat down search by PC Epperson happened at 19:41.

[36] When an individual is being detained by the police there is a very limited power by the police to search that person. The Court in R. v. Mann 2004 SCC 52 restricted the basis for such a search to a pat down, tethered to officer safety. As the Court made clear, fishing expeditions are not permitted see R. v. Mann at par. 43.

[37] In this case PC Epperson had a cooperative detainee who had volunteered a knife during the detention process. That is, in my finding, sufficient to permit her to conduct a pat down search for officer safety to ensure that there is nothing else which put officer safety in play. Confirmation by the detaining officers that the detainee had a knife on him, albeit not a weapon as such, put the situation above a mere fishing expedition. There is nothing in the evidence which suggests that PC Epperson was using the pat down power for another reason aside from officer safety.

[38] For these reasons the second limb of the Charter Application is dismissed.

iii) Search of the Pill Box

[39] Mr. Gopaul argues that his s. 8 rights were violated when the police searched the contents of a pill box found in his pocket upon arrest. The claim is that the police had the power to search his pockets, but not the contents of the pill box therein which turned out to contain cocaine.

[40] A search is lawfully incidental to arrest (SITA) if it meets the following criteria:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

See R. v. Fearon 2014 SCC 77 at par. 83. The objective of the warrantless search incidental to arrest must be one of valid criminal justice such as discovery of evidence or officer safety see Cloutier v. Langlois 1990 SCC 122, [1990] S.C.J. No. 10. The SITA must be spatially and temporally tied to the arrest, see R. v. Ibrahim, 2021 MBCA 12, R. v. Ellis, 2016 ONCA 598.

[41] With this established I find that the arrest of Mr. Gopaul was lawful. He failed an ASD test and was arrested for 80 plus. With this the police were authorized to search the contents of Mr. Gopaul’s pockets to search for evidence or anything which could affect officer safety. There is no reason factually, or in law, to isolate the search power in these circumstances to Mr. Gopaul’s pockets but not the packages or containers within those pockets. Put bluntly, a container within the pocket is not a protected zone. The container within the pocket falls under the same analysis as the pocket. I find the distinction between the pill container and the pocket itself to be artificial. This limb of the Charter application is therefore easily dismissed.

iv) Strip Search

[42] Mr. Gopaul was strip searched at 41 Division. In submissions Ms. Wahlia agreed that it was in violation of Mr. Gopaul’s s. 8 rights. This is a fair admission. Mr. Gopaul was strip searched because drugs were found on him, and he admitted to drug use. Notably he was never arrested on that charge. The CDSA charge was added when he appeared in Court some time after his arrest. Mr. Gopaul was arrested for the Criminal Code infraction of 80 plus but strip searched because drugs were found on him. As the Court found in R. v. Golden 2001 SCC 83 at par. 93, the reason for the strip search must be connected to the reason for the arrest. Given the Crown’s concession I make no finding about whether possession of drugs and admission about drug consumption are in and of themselves sufficient to strip search someone arrested under the CDSA.

[43] There is therefore a s. 8 violation when Mr. Gopaul was strip searched at 41 Division because of drugs without ever being arrested for possession of drugs.

Rights to Counsel violations

v) S. 10(a) and 10(b) – Drugs

[44] I find as fact that PC Epperson searched Mr. Gopaul incidental to arrest at 19:56 she found cocaine in small ziplock bags. She asked him about them and he said he had a drug problem and the drugs were for personal use. When she seized those drugs she is heard on the In Car Camera to ask Mr. Gopaul, what is the substance and he can tell her “straight up”. Mr. Gopaul responds that he is a junkie.

[45] With this established, no police officer ever cautioned Mr. Gopaul that he was being investigated for drugs. He was never arrested or given rights to counsel for anything other than the 80 plus charge. In the evidence PC Epperson explained that she was given conflicting signals from her superiors about whether to proceed with drug charges against Mr. Gopaul. Ultimately, and many days later, she decided to submit the seizures for testing.

[46] In R. v. Sawatsky (1997), 1997 ONCA 511, 103 O.A.C. 68 Doherty J.A. described one of the contours of the police obligation under s. 10(a) of the Charter.

29 Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed: R. v. Borden, supra, at p. 419.

Emphasis added

[47] Cautioning the arrestee about all the reasons for the investigation is the minimum in order to permit the person to obtain advice and simply understand their jeopardy. Without this the detainee cannot access the lifeline of rights to counsel, see R. v. Rover 2018 ONCA 718 at par. 45. In this case the questioning and subsequent investigation by PC Epperson establish that Mr. Gopaul was at jeopardy for possession of a Schedule 1 substance. In order to satisfy s. 10(a) and 10(b) under the Charter he needed to be told of this and given an opportunity to obtain advice. The failure by the police to so inform him is a violation of his rights under s. 10(a) and (b) of the Charter.

[48] The defence alleges that his rights under s. 10(b) of the Charter were violated when PC Asselstine put the defendant in touch with Duty Counsel at 9:53. The allegation is that, having asked for counsel of choice who was not available, the officer took insufficient steps.

[49] In this case I have no difficulty in finding that PC Asselstine made real efforts to put Mr. Gopaul in touch with counsel of choice. He did that by first leaving a message on his voice mail at 9:24pm and then getting Mr. Gopaul’s phone out of his property bag and letting him type a message to his lawyer on face book messenger. He then waited until 9:44 before telling Mr. Gopaul that he would contact duty counsel, which he did.

[50] When the arrestee asks to speak to counsel of choice the police must make reasonable efforts to give effect to that request. Cst. Asselstine did that. When the police cannot reach the lawyer of choice the police must tell the arrestee that no contact has been made and they can call another lawyer or speak with duty counsel. In R. v. Traicheff 2010 ONCA 851 the Court endorsed, per curiam that,

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

See also R. v. Doherty 2022 ONSC 5546 at par. 35

[51] In this case, PC Asselstine called duty counsel for Mr. Gopaul instead of taking the additional step of telling him that Mr. Murphy has not called back and is unavailable and that Mr. Gopaul could call another lawyer if he wished. That gives rise to a s. 10(b) violation.

vi) Lost Evidence

[52] Mr. Gopaul alleges that two police videos were lost through unacceptable negligence, and therefore his right to disclosure under s. 7 of the Charter was violated. The evidence establishes that two in car camera videos from the time of Mr. Gopaul’s roadside investigation were lost. It is unclear why, but DC Parkin’s evidence suggests that it was a failure by an investigating officer to mark the video as criminal when it was recorded. Because of that, the inference goes, the video was erased after two years.

[53] There is no apparent reason for the lost videos. DC Parkin’s explanation makes sense, but it has an element of speculation. In the end I find that both videos were made, but never produced to the Crown for disclosure. They ended up being erased at some point, but should have been preserved. Both videos would have captured the moment of Mr. Gopaul’s ASD test and are therefore relevant. The absence of any reason why two of the 4 videos were not kept for disclosure furnishes a basis on which I find that the erasure or loss of the video recordings was due to unacceptable negligence, see R. v. Bero 2000 ONCA 16956, [2000] O.J. No. 4199.

Remedies

[54] I have found violations of ss. 8 because of the strip search, s. 10(a) and (b) for failure to advise Mr. Gopaul of his jeopardy under the CDSA and also in failing to take an additional step when it became apparent that counsel of choice was not going to call back, and lastly the failure to preserve video disclosure.

vii) S. 24(2) Remedies

[55] I would first apply the orthodox test for exclusion of evidence under s. 24(2) of the Charter, applying the test under R. v. Grant 2009 SCC 32. Some of the Charter violations are more serious than others. The strip search was done without a lawful basis when the test for conducting a strip search has been known for many years, see R. v. Golden (supra). It appears that Sgt. Ho never considered whether he was ordering a strip search for the charges Mr. Gopaul was arrested on. The failure to advise Mr. Gopaul of his jeopardy under the CDSA is also quite serious. No explanation was provided why any of the officers who were aware of the drug seizure didn’t inform Mr. Gopaul that he was being investigated for that too. That too is a very serious Charter violation. The failure to take an additional step after counsel of choice did not call back is less serious, because PC Asselstine had by then taken real steps to put Mr. Gopaul in touch with counsel of choice, thereby giving effect to his Charter rights. Lastly, the negligence in failing to preserve the video evidence is quite serious. Evidence must be disclosed and in order to do that it must be preserved. Electronic recordings of the investigation are quite helpful in determining any case on it merits, and the inability to examine that evidence makes the Court’s task more difficult.

[56] The first prong of the R. v. Grant analysis very strongly pulls toward exclusion of both the cocaine evidence, and the breath evidence. The combination of multiple Charter violations fuels this finding.

[57] The Charter violations had a significant effect on Mr. Gopaul’s Charter protected interests. He was strip searched unlawfully. He was never told about the possibility of drug charges. Video evidence was lost. Those had an obvious and palpable impact on his Charter protected interests. Less serious is the failure to take an additional step before putting him in contact with duty counsel. He spoke with Duty Counsel, so he obtained legal advice before providing breath tests. I make that finding with the acknowledgement that he never would have been told about his CDSA jeopardy before speaking with Duty Counsel.

[58] The second prong of Grant very strongly pulls toward exclusion of the cocaine and breath test evidence.

[59] The last prong of Grant asks the Court to balance society’s interest in adjudication of the trial on its merits against the Charter violations. Society always has in interest in a trial proceeding on its merits. The question is always by how much. In this case I would find that the number of Charter violations outbalances society’s interest in a trial on its merits on the 80 plus and CDSA charge. This a rare finding because in this case it is reliable evidence that hangs in the balance. The third prong of Grant modestly favours exclusion of evidence.

[60] What can be seen is that all three factors of the Grant analysis favour exclusion of evidence, and I have no difficulty in finding that the cocaine and breath tests should be excluded from the evidence.

[61] With the finding that the cocaine and breath tests are excluded from the evidence at trial, an alternate remedy to a stay of proceedings is appropriate, see Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 SCC 322, [1997] 3 S.C.R. 391 (S.C.C.). The lost evidence would have assisted the defence at trial, but there were other electronic recordings of the moment which were led at trial and helped the defence make out Charter violations. I would therefore find that the lost evidence was not so central to the case that full answer and defence was significantly impaired. Mr. Kiss’ suggestion that the lost evidence may have had exculpatory utterances is speculative. I have no evidence of that. For these reasons I would not stay the proceedings.

Trial on the merits

[62] Mr. Gopaul is charged with taking the motor vehicle without the consent of the owner. Donna Culbert testified that she gave her daughter Sarah permission to drive the RAV 4, but not Mr. Gopaul, who she does not know. Sarah Culbert testified that she was quite angry when she discovered Mr. Gopaul missing with her car. He had no permission to take it. It is of no moment that she did not immediately call the police. I accept her evidence that Mr. Gopaul was her friend and she wanted her car back without reporting it to the police. Her repeated phone calls to Mr. Gopaul during his breath testing procedure confirm that aspect of her evidence. She was not moved in her evidence about Mr. Gopaul not having consent to take the car and there is no contradictory evidence to cast doubt on the point. I find that Mr. Gopaul took Donna Culbert’s car without her consent or the usual operator Sarah Culbert. He is found guilty of that charge.

[63] The test for impairment on the Impaired operation count is whether the evidence establishes any degree of impairment beyond a reasonable doubt.

If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

See R. v. Stellato 1993 ONCA 3375

[64] In this case there is uncontradicted evidence that Mr. Gopaul had been drinking heavily with Ms. Culbert on April 7. He took her car without her consent and then crashed it into a fence. There is no explanation in the evidence for the crash. The evidence also establishes that having crashed the car Mr. Gopaul tried to extricate the car to the point that the tires became liquified, spraying rubber over the car. He was unresponsive when he was found but appears to have woken up fairly quickly when the police approached him. This is sufficient to find that he passed out at the wheel. He had slurred speech and had no idea why he crashed the car. All of this supports a finding that he was much more than slightly impaired by alcohol when he crashed Ms. Culbert’s SUV. There is no frailty in the evidence. He is found guilty of the impaired operation count.

Released: December 5, 2022 Signed: Justice David Rose