Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 12 23 COURT FILE No.: Windsor 18-12014

BETWEEN:

HIS MAJESTY THE KING

— AND —

MARTA BUENO TRONCOSO

Before: Justice S. G. Pratt

Heard on: 14, 15 April 2021, 30 May, 15 September 2022

Reasons for Judgment released on: 23 December 2022

Counsel: Jenna Wright, for the Crown Kenneth Golish, for the Defendant

Pratt J.:

[1] Marta Bueno Troncoso, hereinafter the Defendant, is charged with two offences: impaired operation of a conveyance and operating a conveyance with over the legal limit of alcohol in her blood. Both offences arise from an investigation began on 20 December 2018 in the town of Kingsville, Ontario. The defence says the Defendant’s rights guaranteed under the Charter of Rights and Freedoms were violated in multiple ways and that I should stay these proceedings as a result. Failing that, the defence says I should exclude the evidence of the breath testing results and find the Defendant not guilty of both charges. The Crown disputes the alleged Charter breaches and says the evidence is sufficient to find the Defendant guilty on both counts. These reasons explain why I agree, to varying degrees, with both sides. In the result, the Defendant will be found guilty of count 1 and not guilty of count 2.

Admissions

[2] Date, jurisdiction, and identity were admitted by the defence at the outset of trial.

[3] Initially, the defence brought an application for relief under s. 8 of the Charter. I was advised in submissions that application was not being pursued. That portion of the Charter applications will be dismissed.

Issues

[4] There are several issues to be determined in this case.

(1) Has the Defendant proved a breach of her rights under s. 10(a) and (b)? (2) Has the Defendant proved a breach of her rights under s. 9? (3) If the answer to either of Issues 1 or 2 is yes, what is the appropriate remedy? (4) Can the Crown rely on the Certificate of a Qualified Technician and avail themselves of the presumption of accuracy? (5) Has the Crown proved the Defendant operated a conveyance while her ability to do so was impaired by the consumption of alcohol?

Issue 1: Has the Defendant proved a breach of her rights under s. 10(a) and (b)?

[5] Late on the night of 20 December 2018, PC Shane Wilson of the Ontario Provincial Police responded to a call regarding a motor vehicle collision. The involved vehicles were on Heritage Road in the town of Kingsville. He received the call at 1131pm and arrived on scene at 1138pm.

[6] When he arrived, he saw a hydroelectric pole that had been toppled and two damaged vehicles. One vehicle was close to the middle of the road while the other was at the side of the road. The vehicle in the road was a Ford Ranger. The vehicle at the side of the road was a Ford F150. Both are pickup trucks. The Ranger had significant damage to its front end while the F150 had damage to its left side.

[7] PC Wilson first spoke to two males, identified as Keith Johnson and Christian Johnson. They told him that the Ranger had struck the hydro pole and then entered the oncoming lane. Keith Johnson, driving the F150, tried to avoid the Ranger but was struck by it on the driver’s side. Christian, Keith’s son, was in a separate vehicle behind his father.

[8] PC Wilson then went to the Ranger. He found the Defendant seated behind the wheel. He noted several indicia of alcohol impairment in his conversation with her. When she exited her vehicle, she was very unsteady on her feet. It was at that point that he arrested her for impaired operation of a vehicle. It was 1143pm.

[9] At 1148pm he read the Defendant her rights to counsel from his notebook. She told him she wanted a lawyer but did not have one. He told her he would put her in contact with duty counsel. At 1150pm he read her the breath demand.

[10] There was no explanation given for the five minutes that elapsed between arrest and the reading of rights to counsel.

[11] They left the scene at 1150pm and arrived at the detachment at 1157pm. The Defendant was lodged into a cell and at 1219am duty counsel was called. The Defendant spoke with duty counsel in private at 1221am and was returned to her cell at 1225am. At 1249am she was turned over to the custody of the breath technician, PC Chauvin.

[12] At 108am, the Defendant expressed concern to PC Wilson that she had not spoken to a lawyer, but only to her son. PC Wilson reminded her that she had spoken to duty counsel, who was a lawyer. He said she seemed satisfied at that point, and in any event never expressed any dissatisfaction with her duty counsel conversation.

[13] In cross-examination, PC Wilson testified that he did not permit the Defendant to use his own cell phone at the roadside to call a lawyer. He also acknowledged that he did not show the Defendant a list of lawyers at the detachment, nor did he offer her a phone book to search for a lawyer. Instead, the call was immediately made to duty counsel.

[14] Regarding her apparent confusion over who duty counsel was, he agreed that his explanation to her that duty counsel was, in fact, a lawyer, took place after her conversation with that person. There was no subsequent call back to duty counsel to allow her to speak with him or her again, now armed with the knowledge that she was speaking with a lawyer. PC Wilson testified that the Defendant was satisfied after his explanation, though counsel fairly pointed out her satisfaction may have been with the explanation itself rather than with the substance of the legal advice she received.

[15] PC Wilson confirmed that there was a list of lawyers posted at the detachment. He said it was generally used if a person had a particular lawyer in mind but needed the phone number. He said if a detainee asked to see a list, he’d provide it. From his evidence, I can take that a) the list is not shown to detainees in all cases as a matter of course where they don’t have a lawyer, and b) the Defendant was not shown the list that night.

Analysis

[16] The Defendant bears the burden of proving a breach of s. 10(a) and (b) on a balance of probabilities. That is, she must show that a breach of her rights is more likely than not.

[17] Regarding s. 10(a), I find she has failed to meet that burden. On first meeting her, PC Wilson immediately asked for her vehicle documents and asked about her alcohol consumption. In my view, given that she had just been involved in a motor vehicle collision, this interaction with PC Wilson would have led her to understand why he was investigating. It is what the Defendant can reasonably be supposed to have understood, rather than the precise words used by the officer, that addresses s.10(a) concerns (see: R. v. Evans, [1991] 1 S.C.R. 869). The s. 10(a) application is dismissed.

[18] I reach a different result regarding s. 10(b).

[19] I am troubled by the unexplained five-minute delay between arrest and the provision of rights to counsel. This was a county road, late at night. There were, thankfully, no injuries PC Wilson might have had to attend to, or any other pressing matters that would keep him from providing rights to counsel for a short time. I heard no evidence of safety concerns or any physical difficulties experienced by the Defendant that would explain the delay. Instead, I have five minutes at an apparently quiet roadside, where nothing seems to have happened. The case of R. v. Suberu 2007 ONCA 60, [2007] O.J. No. 317 (C.A.) is both instructive and binding on me. Justice Doherty noted the following at paragraph 47:

When the detained person is arrested, only legitimate police safety concerns or similar exigencies can justify any delay in advising the arrested person of his or her rights under s. 10(b) of the Charter.

[20] Writing for the Supreme Court of Canada, Chief Justice McLachlin and Justice Charron agreed with the Court of Appeal in their review of the case (2009 SCC 33), stating at paragraph 42:

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[21] In failing to provide the Defendant with her rights to counsel without delay, and there being no explanation offered for that postponement, PC Wilson breached her rights under s. 10(b).

[22] While that is an informational breach, I also must consider what happened in the eventual implementation of her rights. When she told PC Wilson that she did not have a lawyer, he immediately told her he would contact duty counsel for her. He did not ask if she knew any lawyers, or if there was anyone she could contact who could give her the name of a lawyer. At the station, he did not provide her with any lawyer names or phone numbers despite having a list available to him. I have some difficulty accepting his evidence that he would only show the list to a detainee who asked for it, or who had a name of a lawyer but not a number. Particularly in the former case, how would a detainee even know to ask for the list? How would they know it exists? I don’t think they would.

[23] The right to counsel includes the right to counsel of choice. If a detainee asks for duty counsel, so be it. But duty counsel shouldn’t be the reflexive answer when a person says they don’t have a lawyer. There needs to be another step taken before duty counsel is called. The detainee must be given an opportunity, either by consulting a list or phone book, or by calling someone to get further information about a lawyer, to contact their chosen counsel.

[24] Unfortunately, that is not what happened here. This is from PC Wilson’s examination in chief, after he read the rights to counsel from his notebook:

WITNESS: …then I asked her “do you understand?” and she replied yes. And “do you wish to call a lawyer now?” At that point in time she advised me that she did not have a lawyer and I responded to her that I would put her in contact with duty counsel.

[25] This exchange is from his cross-examination, when asked what the Defendant said in response to being asked if she wanted to call a lawyer:

WITNESS: Her response was “I don’t have a lawyer”.

COUNSEL: All right, but she wanted a lawyer, she just didn’t have one, is that fair enough?

WITNESS: Fair enough.

COUNSEL: Ok. Um, now, and when she said she didn’t have a lawyer, she wanted a lawyer but didn’t have a lawyer, you said you would get her free duty counsel, correct?

WITNESS: Yes that’s correct.

COUNSEL: And you said that immediately after, after she said she didn’t have a lawyer, right?

WITNESS: Yes I did.

COUNSEL: Did you say anything else besides you would get her free duty counsel?

WITNESS: No sir.

[26] In her own evidence, the Defendant did not remember being given her rights to counsel at the roadside. She further testified that she did not speak to anyone after being lodged in the cell. It was only when she was shown the breath room video that any memory of a call seemed to return to her. She testified that she hadn’t spoken to a lawyer. She said she had tried to call her son but couldn’t get through. In the breath room video she told police she had not spoken to a lawyer. PC Wilson told her that she had spoken to duty counsel as she did not have her own lawyer. He then asked if there was anyone else she would like to talk to. She shrugged. He told her that when a person says they don’t have a lawyer, the police give them duty counsel, which he told her again, is a lawyer. He asked if she was satisfied, and she said yes.

[27] This is the only exchange where the possibility of calling someone other than duty counsel was mentioned. The Defendant was still not shown a list of lawyers or phone book to help her find someone. But at least the idea of calling someone else was brought up.

[28] In my view, the Defendant was not especially diligent in exercising her right to counsel. I find as a fact she did speak with duty counsel at 1221am for four minutes. A short time later, she said she hadn’t spoken to a lawyer. She was asked if there was anyone she would like to call and she simply shrugged. She was told duty counsel was a lawyer and was asked if she was satisfied. She said yes. While I recognize in her testimony the Defendant said she wished she had been given a chance to call the lawyer of her choice, she never made that clear to police. Instead, she told them she was satisfied with what had happened to that point. While I believe police could have and should have done more, the same could be said about the Defendant.

[29] That said, the police failure to even suggest calling someone other than duty counsel amounts to a denial of the Defendant’s right to counsel of choice. From the moment at the roadside when she said she had no lawyer in mind, she was told only that she could speak to duty counsel. That was improper and, in my view, violates the implementational component of s. 10(b).

[30] Setting aside the counsel of choice issue for a moment, I would also find that when the Defendant advised of the extent of her confusion in the breath room, circumstances required police to at least call duty counsel again. If she really didn’t know duty counsel was a lawyer during their first conversation, it stands to reason that their exchange was probably not as useful as it might have been. But this was not done.

[31] In the result, owing to the delay in providing rights to counsel and the deficiencies in implementing those rights, I find the Defendant has proved a violation under s. 10(b).

Issue 2: Has the Defendant proved a breach of her rights under s. 9?

[32] The second breath test was completed at 145am. The Defendant was released by police at 745am. She was held, therefore, for six hours after her second test.

[33] When asked why she was held, PC Wilson testified that it was not unusual to keep someone who had registered readings as high as the Defendant’s (187 and 174 mg of alcohol per 100mL of blood) in custody for a period after testing. This, he said, was for their own safety and the safety of the public. He noted that each case was decided on its own merits and there was no blanket policy or written directive to hold everyone who tested over a certain amount.

[34] The Defendant testified that she was in a cell after testing until she was released. She said she didn’t think it was necessary as she wasn’t a danger to anyone. She said she could have called someone for a ride if she’d been given the chance. She further testified that police took her clothes before putting her in the cell.

[35] I have watched the cell video, including the entire time she was held following the second test. Saying the police took her clothes is an overstatement, though it appears they did take the sweatshirt she was wearing. She was, however, give two blankets. She spent the time in the cell sitting or lying on the bunk. It seemed clear to me that she was often nodding off to sleep. The camera stopped recording several times while she was lying down. It is possible the camera was activated by motion, and these were the times the Defendant was lying still and asleep, but I did not hear any evidence on that feature of the camera. In any event, there was nothing untoward in the manner in which she was held. Yes, she does use the toilet twice while in the cell, but the blankets provided by police and the angle at which the camera is place maintained her privacy completely.

[36] When claiming a s. 9 Charter breach, as an overholding breach is, the burden is on the Defendant to prove the violation (see: Suberu, supra, from the Supreme Court of Canada at paragraph 28; R. v. Hardy 2015 MBCA 51, summarizing the law at paragraphs 37-38). The Defendant must show a prima facie case of arbitrary detention that requires an answer from the Crown.

[37] The core of the Defendant’s argument on overholding is that she felt it was unnecessary and too long, and that the cell was not a comfortable environment. That may indeed be how she feels, and the holding cell may indeed be an uncomfortable place to be, but that is not sufficient to show a prima facie case of overholding when the period of detention is six hours after the last breath test and it appears the Defendant slept through much of it. In my view, the evidence presented does not call for an answer from the Crown.

[38] If I am wrong in that finding and the Crown should explain the detention, I find that the evidence from PC Wilson provides that explanation. As he testified, the Defendant had just provided two breath samples that placed her at more than double the legal blood alcohol limit. He understood she was returned to cells in order to “sober up”. He calculated that based on her breath readings she would have been at approximately 80mg/100mL at the time of her release. He said intoxicated persons were generally held for their safety and the safety of the public, but that it was not a standard one-size-fits-all policy. Each case was evaluated on its own facts. In this case, the decision to keep her in custody for a period of time was made. All things considered, that was a reasonable decision that was implemented in a reasonable way.

[39] I find the Defendant has not led sufficient evidence of a s. 9 breach to meet the burden on her. That portion of the application is dismissed.

Issue 3: If the answer to either of Issues 1 or 2 is yes, what is the appropriate remedy?

[40] The Defendant has proved a violation of her rights under s. 10(b). I now turn to an appropriate remedy.

[41] Counsel for the Defendant has argued that a stay of proceedings should issue on the basis of all the claimed Charter breaches. Given that not all breaches were proved, however, this is not an appropriate case for a stay. The potential remedy for a breach of rights to counsel is the exclusion of evidence, specifically the results of the breath tests. It is that remedy that I will consider.

[42] For relief under s. 24(2) of the Charter, the Defendant must show that the evidence sought to be excluded was obtained in a manner that breached her rights. This is not a difficult test to meet in the present circumstances. I have found that the Defendant’s rights to counsel were breached at the roadside and again at the police station; this was all prior to her first breath test. There are clear temporal and contextual connections to the breach of her right to counsel and her acquiescence to the breath testing procedure. I have no hesitation finding that the breath test results were obtained in a manner that infringed or denied the Defendant’s Charter rights.

[43] Just as the onus to prove a breach was on the Defendant, so too is the onus to show that the evidence in question should be excluded. The Defendant must show that the admission of the evidence would bring the administration of justice into disrepute. The burden for that showing is a balance of probabilities.

[44] The Supreme Court of Canada has set out a three-stage analysis for trial judges to follow on this point. In R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32, Chief Justice McLachlin and Justice Charron directed courts to consider the following issues:

(1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society’s interest in the adjudication of the case on its merits.

The seriousness of the Charter-infringing state conduct

[45] The first breach took place at the roadside when an unexplained five minutes passed between arrest and the provision of rights to counsel. Rights to counsel are to be provided without delay. This has been taken to mean immediately. Respectfully, this is not a new concept. I was given no reason for a delay in providing rights after arrest. I was certainly not advised of any safety concerns or unexpected events that might have explained the delay. In fact, the evidence on what happened between 1143pm and 1148pm is entirely lacking. This only heightens the Court’s need to be mindful of the Defendant’s rights.

[46] The second breach involved the police steering the Defendant towards duty counsel. She was never told she could search for a lawyer of her choice, neither with the list of lawyers posted at the detachment nor with a phone book. Instead, duty counsel was called immediately on her behalf when she said she didn’t have a lawyer. To make matters worse, subsequent to that call and conversation, she expressed confusion about what had happened. She wasn’t even clear in her mind on the fact that duty counsel was a lawyer at all. Despite this confusion, no further attempts were made to contact any counsel on her behalf so she could have a better-informed discussion of her rights and obligations.

[47] In my view, these breaches are serious. They demonstrate a failure to implement procedures that have been required by appellate courts for years, if not decades. No explanation was given for this failure. This stage of the analysis leans towards exclusion.

The impact of the breach on the Charter-protected interests of the accused

[48] The right to retain and instruct counsel without delay on arrest or detention is fundamental to our law. Any state conduct that interferes with that right is inevitably serious. This stage of the Grant test considers how that state conduct actually impaired the right in question.

[49] For the first five minutes after the Defendant’s arrest, the right to counsel was entirely denied. On its face it’s hard to imagine a more serious impact. I recognize, however, that the right was given after that period, and that no evidence was obtained in the interim. In my view the impact on the right to counsel of a five-minute delay in providing it, is, in these circumstances, minimal.

[50] The breach at the station is more significant. The Defendant was denied the ability to choose her counsel. She was never provided the list of criminal lawyers that was readily available. She was instead sent directly to duty counsel. When she later expressed confusion over that consultation, she was not given a chance to reconnect with duty counsel (or any counsel) for further advice. I find on a balance of probabilities that when she provided samples of her breath, her understanding of her legal jeopardy was sorely deficient. That deficiency was as a result of the breach of her rights. As to this breach, the second stage of analysis leans towards exclusion.

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

[51] Society will always have an interest in seeing criminal charges adjudicated on their merits. This is especially so in a case of impaired driving, an offence that kills or injures thousands of Canadians each year. There is an expectation that those persons charged with criminal offences will see those charges tried fairly, in an open court, to their conclusion.

[52] That expectation, however, does not come at all costs. Society has an equally strong interest in seeing the state held to account when its conduct breaches the fundamental rights of citizens. The public would not want to see a justice system that cares little for the rights of the individual in pursuit of convictions. There will be cases where society’s interest in safeguarding Charter rights will outweigh its interest in the adjudication of a case on its merits.

[53] On this stage of the inquiry, I must also consider the importance of the evidence to the Crown’s case. On the charge of excess blood alcohol, the breath readings are crucial. Without them, there is no evidence capable of supporting a conviction. Further, breath samples are reliable, science-based evidence of criminal wrongdoing. The Supreme Court in Grant, supra, stated clearly that the reliability of the evidence is a factor that weighs in favour of its admission. I must determine if society’s interest would be served in excluding such impartial and powerful evidence.

[54] Considering the reliability of the evidence and its central importance to holding a trial of the offence on its merits, I find this stage of the inquiry leans towards admission.

Result

[55] Balancing all three Grant factors, I find the Defendant has proved on a balance of probabilities that the evidence of the breath testing results should be excluded. There were multiple breaches of her s. 10(b) rights that revealed a disregard (intentional or otherwise) for longstanding jurisprudence. These breaches led to the Defendant submitting to the breath testing procedure without really understanding her jeopardy or her options. In my view, the admission of the evidence in the face of these breaches would harm the repute of the administration of justice more than its exclusion would.

[56] The breath test results will be excluded from evidence.

Issue 4: Can the Crown rely on the Certificate of a Qualified Technician and avail themselves of the presumption of accuracy?

[57] Given my finding on the Charter application, this issue is moot. As I brought this issue up, however, and sought further submissions on it, I will address it briefly.

[58] The main concern I had with the Certificate filed is that it was created under the legislation that preceded the sections under which the Defendant is charged. At the top of the form it states, “CERTIFICATE OF A QUALIFIED TECHNICIAN (Breath Samples, Section 258 (1)(g))”. Section 258 had been repealed at the time this certificate was used. I questioned if this affected the certificate’s validity.

[59] The Crown argues that while the wrong form may have been used, the information found in it still satisfies the requirements of the current section, s. 320.31(1). It still provides evidence that samples of breath were taken by a qualified technician directly into an approved instrument, that said instrument was operated properly and was in good working order, and what the results of the tests were. That it referenced the wrong section is not relevant to the substance of the information it provides. As well, the Intoxilyzer test records were also filed as exhibits. Pursuant to s. 320.33, these records are evidence of the facts alleged in them. The net effect of the Certificate and the test records is that the Crown has proved the blood alcohol concentration of the Defendant at the relevant time beyond a reasonable doubt. That is, they should be able to benefit from the presumption of accuracy.

[60] In the alternative, the Crown submits the breath results are admissible under the common law as the instrument was capable of making the measurement in question, it was in proper working order, and it was operated properly.

[61] There are two potential issues with this argument. The first relates to the proper operation of the instrument. The second relates to it being in proper working order.

[62] First, it is essential that the instrument be operated properly, by a qualified technician. The Certificate filed identifies the operator only as “Chauvin”. There is no first name. There is no badge number. The test record printout includes a badge number. At no point was any evidence led that the “Chauvin” mentioned in the materials was, in fact, the James J. Chauvin designated by the Solicitor General on 6 December 2010.

[63] Second, the Certificate refers to the alcohol standard used in ensuring the proper functioning of the instrument. It states the standard came from “Laboratories Atlas I” and had a lot number of 45KD. I note that alcohol standards often come from a company called Laboratoires Atlas Inc. It may be that the certificate contains an innocent misspelling. Regardless, there was no evidence led that the alcohol standard, wherever it was from, was certified by an analyst. (Perhaps ironically, the new Certificate form does include a statement that the alcohol standard was certified by an analyst.)

[64] Pointing out these shortcomings may be seen as splitting hairs and letting minutiae get in the way of a trial’s truth-seeking function. I would disagree. Certificates and test records provide a valuable shortcut for the Crown in proving a person guilty of a criminal offence beyond a reasonable doubt. When facts in issue can be assumed to be proven simply by the filing of paperwork, it is essential that that paperwork be exact. The Crown – or more specifically, the police – must be held to a high standard in situations like this. I refer to the words of Justice Ritchie of the Supreme Court of Canada in the case of R. v. Noble, [1978] 1 S.C.R. 632:

The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.

[65] Had I found differently in the Charter application, I would have had difficulty accepting the evidence contained in the Certificate and test records, either statutorily or at common law.

Issue 5: Has the Crown proved the Defendant operated a conveyance while her ability to do so was impaired by the consumption of alcohol?

[66] I turn now to whether the Crown has proved the offence of impaired operation of a conveyance.

[67] The Crown must prove beyond a reasonable doubt that the Defendant’s ability to operate a conveyance was impaired to any degree by the consumption of alcohol. In support of that allegation, the Crown called two civilian witnesses and one police witness.

[68] Keith Johnson was driving his 2010 Ford F150 pickup truck on Heritage Road in Kingsville the night of 20 December 2018. His son Christian had a dead battery in his vehicle and needed assistance. Keith helped get that vehicle running again and was driving home.

[69] He was driving east on Heritage Road when he saw a vehicle coming westward at a high rate of speed. He saw this vehicle hit a hydroelectric pole, causing an electrical surge. The vehicle was moving fast enough that he saw it climb the pole, and he remembered seeing the vehicle’s undercarriage. This was 150-200m away from him. He pulled to the side of the road but the other vehicle kept moving, crossed the road and struck the rear driver’s side of his truck. Keith exited his vehicle and called 911. His son pulled up behind him and together they went to the other vehicle. It was admitted this vehicle, a Ford Ranger pickup truck, was being operated by the Defendant.

[70] They helped the Defendant exit her vehicle. Keith noted that she had a hard time standing on her own. Her speech was slurred and she kept saying they shouldn’t call police. She said they could look after the damage themselves. He said he told both the 911 operator and the responding police officer that he believed the Defendant was impaired.

[71] Christian Johnson was driving behind his father when he saw “sparks light up the sky”. He saw his father pull over, and saw another vehicle cross the road and hit him. He said the hit was hard enough to move his father’s truck up the nearby driveway. When asked if he saw the source of the sparks, he said he saw the hydro pole had been hit and snapped in half.

[72] At the time, Christian was a second-year nursing student. After he stopped his vehicle, he checked to see if his father was hurt. He was not. He then checked on the Defendant. She also had no obvious injuries. She exited her truck and pleaded with Keith not to call the police. She offered to buy him a new truck. She repeated her plea not to involve police enough times that Christian remembers his father telling her to just stop talking.

[73] As a nursing student, Christian testified that he had received some education in spotting signs of impairment. When observing the Defendant, he noted her eyes to be droopy and her speech to be slurred. He said she was lethargic and had difficulty standing. In his opinion, she seemed drunk. He also testified to the smell of marijuana coming from the Defendant’s vehicle.

[74] As I noted above, PC Wilson was the responding officer. When he arrived, the Defendant was back in her vehicle. PC Wilson spoke to Keith and Christian, and then to the Defendant. He asked for her documents, which he said she fumbled in providing. He also noticed her eyes to be somewhat bloodshot and her speech to be a little slow and slurred. When she exited her vehicle, she was so unsteady on her feet that he feared she may fall. He arrested her for impaired operation.

[75] In cross-examination, all witnesses agreed they’d never met the Defendant before and so could not compare her speech on that occasion to how it ordinarily sounded. All witnesses also agreed that the Defendant may have been shaken up by the collision.

[76] The Defendant chose to testify. She denied drinking during the day but acknowledged consuming three beers and two shots of alcohol at a nearby restaurant over the course of about three hours that evening. She said she’d been working long hours at her greenhouse business and fell asleep behind the wheel of her vehicle while driving home. She said she woke up after the crash.

[77] Though she didn’t come out and say it, it seems the Defendant is blaming the collision on her fatigue. She testified to working double shifts at her greenhouse, often until 11pm or midnight, as she was short-staffed.

[78] I have no reason to doubt the Defendant’s evidence on her level of fatigue that night. It may well have played a role in the collision. The presence of a factor other than alcohol does not absolve a person on a charge of impaired operation, however. As stated by my brother Justice Reinhardt in the trial decision of R. v. Bartello [1996] O.J. No. 1000 (C.J.), aff’d at [1997] O.J. No. 2226 (C.A.) at paragraph 22:

In a series of cases decided before Stellato, various courts in different provinces have looked at factual examples of multiple causes of impairment. In R. v. Payette, Cowan J., of the British Columbia Supreme Court, sitting as a Summary Conviction Appeal justice, dealt with facts that were similar to Mr. Bartello's, in terms of lack of sleep. Mr. Payette had worked from midnight on 3 June, until 8:00 a.m. on that date. On the day of the 3rd, he did not go to sleep at all. In the early morning hours of the 4th, he was seen driving erratically, stopped and charged with impaired driving. His defence, despite having consumed alcohol, was fatigue due to lack of sleep. The trial judge convicted. On appeal, Mr. Justice Cowan ruled that impaired driving is made out where the Crown establishes that the accused was in a fatigued condition such that the consumption of alcohol which might not otherwise have caused him to become impaired caused him that instance to become impaired.

[79] Sitting as a summary conviction appeal court, Justice Milanetti noted the following in the case of R. v. Goldblatt [2010] O.J. No. 4095 (S.C.J.) at paragraph 14:

The accused's statement regarding his ability to drive, (despite the efforts of counsel to neutralize this admission in re-examination), is evidence of impairment given that alcohol need only be a contributing factor to the impairment and "any degree of impairment ranging from slight to great ..." is sufficient to constitute the offence. Stellatto ibid, page 4, paragraph 14.

[80] So long as alcohol is a contributing factor to impairment, the Crown will have proved this element of the offence.

[81] The evidence on the issue of impairment then, is as follows:

(1) Testimony of significant alcohol consumption (2) The Defendant’s vehicle left the roadway and struck a hydroelectric pole at a high rate of speed (3) Her vehicle then crossed the roadway and struck Keith Johnson’s truck (4) Repeated pleas from the Defendant not to involve the police in the aftermath of the collision (5) In their dealings with the Defendant, witnesses noted the following physical indicia: (a) Droopy, bloodshot eyes (b) Lethargy (c) Slurred, slow speech (d) Significant unsteadiness on exiting her vehicle (e) Some difficulty in providing documents to police

[82] Aside from the suggestion that the witnesses didn’t know the Defendant and so had nothing to compare her speech to, and that she may have been shaken up from the collision, the evidence of impairment was not really challenged on cross-examination. I accept the evidence of Keith and Christian Johnson, and of PC Wilson, on their observations of the Defendant. I would note that in listening to the Defendant testify, I heard nothing that could be considered slurring. Further, if anything, I found the Defendant to speak quickly.

[83] In summary, then, taking all the evidence into account, I find the Crown has proved the Defendant’s ability to operate a conveyance was impaired by the consumption of alcohol. Alcohol was a contributing, if not dominant, factor in her impairment.

[84] The Defendant will be found guilty of Count 1. As the breath test results have been excluded from evidence, she will be found not guilty of Count 2.

Released: 23 December 2022 Signed: Justice S. G. Pratt