His Majesty The King v. Mauricio Carrillo, 2023 ONCJ 514

ONTARIO COURT OF JUSTICE

DATE: 2023 11 21 COURT FILE No.: Toronto 4810-998- 22-40003766-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

MAURICIO CARRILLO

Before: Justice Mainville

Heard on: November 20, 2023 Reasons for Judgment released on: November 21, 2023

Counsel: Ian Laing, counsel for the Crown Jonah Parkin, counsel for the accused

Mainville J.:

[1] Mr. Carrillo is charged with having operated a vehicle while his ability to do so was impaired, and having done so with a blood alcohol level over the legal limit of 80 mg per 100 mL of blood, contrary to ss. 320.14(1)(a) and (b) of the Criminal Code.

[2] Mr. Carrillo was first arrested for impaired driving at the scene of a motor vehicle collision, in which he broke his femur. He was transported to the hospital by ambulance, and two samples of his breath were collected from him at the hospital.

[3] Mr. Carrillo filed a Charter application arguing that there were insufficient grounds to arrest him for impaired driving and for subsequently demanding that he provide breath samples, in violation of his s. 8 right against unreasonable searches and seizures and his s. 9 right against arbitrary detention. The Charter application also alleges a violation of his s. 7 right to life, liberty and security of the person, given that the police took the breath samples from him while he was in extreme pain.

[4] The evidence from the Charter voir dire was blended with the trial, except for Mr. Carrillo’s own evidence on the s. 7 issue. On agreement of the parties and given the particular circumstances of how this case unfolded, it was agreed that Mr. Carrillo’s voir dire evidence would be separate from the trial evidence.

[5] The Crown called three witnesses at trial: a civilian who witnessed the collision, Dominic Gasparo, the arresting officer, Officer Vondercrone, and the Qualified Breath Technician, Officer Daryaram.

[6] This case largely turned on the merits of the Charter application. There was no issue raised regarding the Certificate of the Qualified Technician and in any event, I find that it met all the prerequisites to the application of s. 320.31(1) of the Criminal Code. The results of the Intoxilyzer are thus conclusive proof of Mr. Carrillo’s blood alcohol level at the time. Mr. Carrillo’s blood alcohol level was 130 mg/100 mL of blood within two hours of driving.

[7] Mr. Carrillo does argue however that the Crown has not proven his impairment beyond a reasonable doubt. I agree with his argument on this point.

[8] For the reasons that follow, I dismiss the section 7, 8 and 9 Charter application. I find that the Crown has proven its case on the charge of driving Over 80 but has failed to prove the charge of driving while impaired.

Facts

[9] At 5:31 am on August 21, 2022, Officer Vondercrone received a radio call regarding a motorcyclist who had been struck by another vehicle. He arrived on the scene five minutes later, just ahead of the paramedics.

[10] Mr. Carrillo was lying on the ground next to the motorcycle and appeared to be injured. Officer Vondercrone testified that first aid took precedence, and the paramedics began to tend to the motorcyclist. While they were attending to Mr. Carrillo, one of the paramedics tapped her nose, leading Officer Vondercrone to believe that alcohol may have been involved. He bent down and began talking to Mr. Carrillo. He smelled a faint odour of alcohol and asked Mr. Carrillo if he had had any alcohol. Mr. Carrillo indicated he had had two beers.

[11] Mr. Carrillo was then placed on a stretcher and taken onboard the ambulance. Officer Vondercrone went inside the ambulance at which point he could smell a strong odour of alcohol emanating from Mr. Carrillo. He then went out to ask his escort about what the witnesses to the collision had said. Upon being advised of the direction of each vehicle and that the motorcyclist was struck as he was conducting a left turn, the officer formed grounds to believe that Mr. Carrillo was under the influence of alcohol and arrested him for impaired driving. He indicated that the fact that the collision had occurred in the early morning hours when there was no or very minimal traffic informed his belief that alcohol had been a factor in the collision.

[12] Officer Vondercrone followed the ambulance to Sunnybrook Hospital, arriving at 6:22 am. Based on information from the paramedics, he believed at that time that the motorcyclist had a broken leg.

[13] The officer did not make a demand for a breath sample into an Approved Screening Device (ASD). He testified that he had grounds to believe that Mr. Carrillo’s ability to drive was impaired by alcohol, such that he proceeded to arrest him without any ASD test.

[14] Mr. Carrillo first made his way to the trauma room, where police were not allowed. He was eventually moved out to a “blue zone” within the hospital. Officer Vondercrone observed Mr. Carrillo to be in pain, having a broken femur, but testified that Mr. Carrillo was able to speak to him. He recalled Mr. Carrillo calling a family member.

[15] Officer Daryaram, a Qualified Breath Technician, arrived at the hospital at 6:40 am with a mobile Intoxilyzer. He spoke to an attending doctor at 7 am about whether she had any objection to the accused doing a breath test. The doctor indicated she did not but that the accused first needed a CT scan for his leg injury. The officer set up his equipment in a room at the hospital.

[16] After the CT scan, at 7:40 am, Officer Daryaram had another conversation with the doctor who indicated that the injury was not life-threatening. Officer Daryaram needed this information in order to notify other officers of steps that did or did not need to be taken at the collision scene. He testified that at that time, he was performing a second role, separate from his Certified Technician role.

[17] Officer Daryaram re-read the breath demand to Mr. Carrillo at 7:46 am. Mr. Carrillo indicated he understood.

[18] Mr. Carrillo had the opportunity to speak to counsel of choice. He was also offered a call with duty counsel.

[19] After the accused made a call, Officer Daryaram proceeded to perform the breath sample procedure. He began the process at 7:55 and obtained a first breath sample at 8:09 am. A second sample was obtained at 8:31 am.

[20] During the procedure, Officer Daryaram noted that Mr. Carrillo had bloodshot eyes, a flushed face, and there was a weak smell of alcohol. He indicated that his speech was good and there was no opportunity to assess Mr. Carrillo’s fine motor skills given his physical condition. He was polite and cooperative. Officer Daryaram noted that the overall effect of alcohol was noticeable, and testified it was not slight.

[21] Officer Daryaram confirmed that Mr. Carrillo appeared to be in pain, and that he was aware he had a broken leg. He did not know whether he was on any anesthetic. He was lying on a bed or stretcher, naked under hospital sheets. Officer Daryaram testified that Mr. Carrillo had no issues providing the samples. He agreed it was very possible that Mr. Carrillo had to lean forward to provide the breath samples.

[22] Officer Vondercrone testified that after Mr. Carrillo failed the breathalyzer test, hospital staff advised that Mr. Carrillo would require surgery. The police allowed the family and Mr. Carrillo’s girlfriend to see him prior to surgery.

[23] Mr. Carrillo was provided with his release documents at 10:18 am.

Reasonable grounds to believe: sections 8 and 9 of the Charter

[24] I accept Officer Vondercrone’s evidence regarding his basis for arresting Mr. Carrillo. He came across as credible and the odour of alcohol was corroborated by the evidence of the Qualified Technician, and by the accused’s admission that he drank two beers. I also accept that he first consulted his police escort who had interviewed witnesses about the collision prior to arresting the accused.

[25] The officer rested his belief on three main considerations: the collision and the circumstances in which it occurred; the smell of alcohol emanating from Mr. Carrillo; and Mr. Carrillo’s admission of having consumed two beers.

[26] The defence argues that on the officer’s own evidence, the grounds to arrest were insufficient. Indeed, he argues that the grounds come down to the consumption of alcohol (based on the smell and admission by the accused that he had had two beers), and that the collision did not add any evidence of impairment to the analysis.

[27] Section 320.28(1) of the Criminal Code provides that a peace officer may make a demand for samples of breath if he or she has reasonable grounds to believe that a person has operated a conveyance while their ability to operate it was impaired to any degree by alcohol. This is in contrast to s. 320.27(1) of the Criminal Code, which only requires that an officer have reasonable grounds to suspect that a person has alcohol in their body and has operated a motor vehicle in the preceding three hours, in order to make a valid ASD demand.

[28] Reasonable and probable grounds do not amount to proof beyond a reasonable doubt or to a prima facie case: R. v. Bush, 2010 ONCA 554, at para. 37. There is both a subjective and objective component to the test.

[29] Absent the necessary subjective and objectively reasonable grounds to believe, the demand will be invalid and there will be a breach of the detained person’s s. 8 and 9 Charter rights to be protected from unreasonable searches and seizures, and from arbitrary detentions.

[30] As explained by the Court of Appeal in Bush, at paragraph 56:

There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21.

[31] It is not necessary for the officer, in forming reasonable and probable grounds to arrest, to have first administered a breath test into an ASD after having formed reasonable grounds to suspect that the driver had consumed alcohol. Whether sufficient grounds exist is a fact-based exercise dependent upon all the circumstances: Bush, at para. 54.

[32] The Court of Appeal specifically considered in Bush how a vehicle accident might inform the analysis. It stated: “That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra, at para. 19.” [Emphasis added.]

[33] Here, I accept that Officer Vondercrone had a subjective belief that Mr. Carrillo’s ability to operate a motor vehicle was impaired by alcohol. Would a reasonable person placed in the position of the officer have been able to conclude that there were indeed reasonable grounds for the arrest and breath demand?

[34] The officer’s belief was supported by objective facts. In respect of the collision, I accept that given the fact that the other car had the right of way and left-turning vehicles need to wait until it is safe to proceed, it is reasonable to believe that the accused’s judgment was impaired – even if the other vehicle was also potentially at fault. Mr. Carrillo either saw the pedestrian and proceeded anyway, in the face of oncoming traffic; did not see the pedestrian – despite evidence that the pedestrian was walking (as opposed to running) – until he began to turn and was then forced to stop in the way of oncoming traffic; or did see the pedestrian and miscalculated his ability to complete the turn before the approaching vehicle arrived in the intersection. That, or he misperceived the approaching vehicle in some way. These scenarios involve some form of misjudgment or misperception.

[35] Certainly, Mr. Carrillo had the wherewithal to slow down when he was approaching the pedestrian. He did demonstrate alertness and prudence in that regard. Nevertheless, it was not unreasonable for the circumstances of the collision to have factored into the officer’s grounds that Mr. Carrillo’s ability to drive was impaired by alcohol, even to a slight degree.

[36] In particular, this was not a collision that occurred in heavy traffic. The arresting officer specifically indicated in his testimony in chief that he considered the collision and the lack of or minimal traffic at those early hours of the day. That factor is relevant given that it suggests there was ample opportunity to conduct a safe turn in between pedestrian and vehicle traffic.

[37] It is important to note that the officer considered the circumstances of the collision itself, in terms of how it transpired, as opposed merely to the fact of a collision in and of itself, or the accused’s state following the collision when that state could readily be explained by the nature of the collision: see Bush, at paras. 51-52 and 57-58.

[38] The officer conducted the inquiry which the circumstances reasonably permitted at that time. He consulted his escort about what the witnesses had relayed. He took into account all of the information that was available to him.

[39] In analyzing what appropriately meets the requisite standard in a breathalyzer case, the Court of Appeal in Bush stated, at paragraphs 46-48:

In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, [2010] O.J. No. 2490, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni, at para. 43.

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), , 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato, supra; Moreno-Baches and Wang, at para. 17.

[40] In light of the above, I am satisfied that the arresting officer had sufficient grounds to arrest and make a demand for breath samples in an approved instrument.

[41] What of the breath technician? The defence argues that Officer Daryaram did not turn his mind to the reasons for the arrest and breath demand made by Officer Vondercrone, and that he merely accepted that there had been a collision and that the attending officers at the scene had made some observations that led to the arrest and demand. It argues that the fact that Officer Daryaram failed to obtain details regarding the observations and the collision, in particular in the circumstances of this case where the accused was injured, is relevant to the R. v. Grant, 2009 SCC 32 analysis relating to the exclusion of evidence under s. 24(2) of the Charter.

[42] As stated by Justice Wilson in R. v. Debot, [1989] 2 S.C.R. 1140, at pages 1166-67, the police officer who decides that a suspect should be searched is the person who must have reasonable and probable grounds for believing the suspect is committing an offence: “That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so.”

[43] Before conducting a section 24(2) analysis, I must of course first find a Charter breach. The defence argument regarding the actions of the breath technician more appropriately relate to the s. 7 argument, which I return to below.

[44] In all the circumstances, however, I believe that valid grounds existed for the warrantless search. I therefore do not find a breach of s. 8 or 9 of the Charter.

Right to security of the person: section 7 of the Charter

[45] The defence argues that taking breath samples from Mr. Carrillo in the circumstances he faced, being in exquisite agony and the procedure making it worse, was a violation of his s. 7 right to life, liberty and security of the person, and that he was deprived of this right in a manner that was not in accordance with the principles of fundamental justice.

[46] The accused testified on this application. I deemed him credible and have no reason to doubt his evidence. He described that on a scale of 1 to 10, the pain he felt was a 20. He did not wish this pain on anyone.

[47] Mr. Carrillo explained that he woke up to find himself on a stretcher, naked with a catheter on, underneath hospital bedsheets. He was not administered any medication or liquids because he was to undergo surgery. He agreed that he responded to Officer Daryaram’s questions and understood his instructions. He acknowledged that he called his family and told them where he was and what was going on.

[48] Mr. Carrillo explained that he had been lying flat and the police had him sit up to provide the breath samples. This was very painful. It was also painful to blow into the machine because he could feel his broken femur when he moved. The pain was so excruciating that he cried. When asked if he expressed the pain to the police, he indicated that he expressed it by crying. He also says he was grunting and kept complaining about his leg hurting.

[49] I appreciate and accept that Mr. Carrillo was in serious pain. That was of course primarily the result of the accident and his broken femur. The question is whether proceeding with the breathalyzer procedure in those circumstances was contrary to his right to security of the person, as protected by s. 7 of the Charter.

[50] The defence analogizes the matter to cases where a stay of proceedings or other remedy has been granted where a person in police custody is videotaped in their holding cell using the toilet, with genitalia and private body parts exposed and recorded. This issue, often referred to as the Mok issue, based on R. v. Mok, 2014 ONSC 64, was analyzed through the lens of section 8 of the Charter: the police conduct constituted a violation of the right against unreasonable searches and seizures, primarily engaging the person’s reasonable expectation of privacy. That was not argued in this case and I find that this line of authority does not assist me in determining whether there was a violation of s. 7.

[51] The defence also analogizes this matter to excessive use of force cases, where a violation of s. 7 is made out based on police brutality or similar circumstances.

[52] One such case is R. v. Nasogaluak, 2010 SCC 6. At paragraph 32 of that case, the Supreme Court stated that “police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.” [Emphasis added.]

[53] In that case, the Supreme Court confirmed the lower court finding that there was a breach of s. 7, stating, at paragraph 38:

The substantial interference with Mr. Nasogaluak’s physical and psychological integrity that occurred upon his arrest and subsequent detention clearly brings this case under the ambit of s. 7 (R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519). The excessive use of force by the police officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak’s security of the person that was not in accordance with any principle of fundamental justice. On that evidence and record, we may assume that there was a breach of s. 7 and that there was no limit prescribed by law justifying such a breach. The conclusion that s. 25 was breached, in that excessive, unnecessary force was used by the police officers at the time of the arrest, confirms it. [Emphasis added]

[54] Section 25 of the Criminal Code is indeed also relevant to the present analysis. It provides:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(b) as a peace officer or public officer,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[55] While intended as a defence to an allegation of excessive use of force, the fact that what was done constituted in my view a lawful use of force appears to me to be relevant to whether the conduct is a violation of section 7. See also R. v. Asante-Mensah, 2003 SCC 38, regarding reasonable force in the context of an arrest.

[56] “State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person”: R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 56. But how does that apply in the circumstances of the present case?

[57] The defence did not provide me with any case where a violation was found in the context of the subject of a breathalyzer test (or other police procedure) being injured or in significant pain.

[58] I accept that in some circumstances, performing a breath test or other similar procedure in the face of serious injury or pain could be akin to such cases where intentional harm is inflicted upon an accused, in a manner that constitutes a s. 7 violation. But is this such a case?

[59] I am unable to find that the police conduct in this case, in administering the breath test, caused a substantial interference with Mr. Carrillo’s physical and psychological integrity. The procedure did not pose a very real threat to Mr. Carrillo’s security of the person.

[60] The Qualified Breath Technician specifically obtained medical clearance for the procedure. Had the police not consulted with a medical practitioner, or had they been indifferent to their view, I would be much more receptive to the defence’s argument. I would have viewed the lack of consultation with the medical staff as very serious, as there would have been disregard for the fact that the procedure could potentially jeopardize the person’s health and physical well-being.

[61] The defence argued that the doctor did not have all the information when she had a first conversation with Officer Daryaram given that the CT scan had not yet taken place. However, the belief from very early on – indeed it was the paramedics view at the scene – was that Mr. Carrillo’s leg was broken. The doctor also did not indicate that if the CT scan revealed or confirmed a fracture, then it would not be medically advisable to proceed. She also did not indicate that if surgery was required, it should await that. The evidence I have is that when asked if she had any objection to the officer performing a breath test, she indicated no, subject to the police holding off until the CT scan occurred. The police did so. The doctor did not otherwise express any medical concerns with proceeding.

[62] Officer Daryaram also testified that the second conversation with the doctor happened after the CT scan, 40 minutes after the first conversation. At that time, it appears that the doctor did not take the opportunity to revise her earlier indication to the same officer, despite the change of circumstances and despite indicating the condition was not life-threatening. In those circumstances, I accept that it was reasonable for the officer to presume that he could now proceed with the taking of the breath sample. When he did, the accused had been placed in a room designated for him at the hospital, which was not a space prohibited to the officers such as the trauma bay and the CT scan room.

[63] Importantly, there was also no indication that surgery was delayed because of the breath tests. The circumstances would suggest otherwise. Certainly, if the breath tests interfered with the course of treatment or with prompt medical attention being provided, in my view the police could be blamed for interfering with the accused’s security of his person.

[64] I accept that even if the breath test procedure did not jeopardize Mr. Carrillo’s health and was cleared by the doctor, it did occasion additional pain and serious discomfort.

[65] However, other than being able to see that he was in pain and perhaps crying (this fact was not put to the officers), the officers had no clear indication from the accused that it was too painful to proceed with the test or that it was impracticable for him to do so. To his credit, despite the pain, Mr. Carrillo complied and was cooperative with the police. These circumstances are relevant to assessing whether there was state misconduct. This is not a case where the police were proceeding over the tortured cries of a person yelling in pain.

[66] The arresting officer indicated that once in the blue room, the accused was in pain but was able to speak to them. The accused and Officer Daryaram confirmed this. The accused indicated to the breath technician that he understood the demand that was read to him. The accused was also able to speak to family and counsel.

[67] There is also no indication that aside from feeling pain, Mr. Carrillo had trouble providing the samples. He did provide two suitable samples.

[68] I also note that there is some time-sensitivity to the test that the police have to contend with: s. 320.28(1)(a) of the Criminal Code.

[69] The defence argues that in this case, the officer had the option of obtaining a blood sample, in particular given that blood had already been taken by the nurse for medical purposes.

[70] It is useful to consider the Criminal Code provisions allowing for a blood demand to be made by the police. Under s. 320.28(1)(a)(ii) of the Criminal Code, blood samples can be demanded in lieu of breath samples “if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one” [emphasis added].

[71] Section 320.28(6) of the Criminal Code also provides that a sample of blood may only be taken by a qualified medical practitioner or a qualified technician “if they are satisfied that taking the sample would not endanger the person’s health”.

[72] As set out above, if taking the breath samples endangers the person’s health, it certainly would seem to me to cross the line. But based on the input obtained from the medical practitioner, I find that the breathalyzer procedure in this case did not endanger Mr. Carrillo’s health.

[73] It is uncertain that the police could have met the requisite threshold for making a blood demand. The Qualified Breath Technician testified that he did not provide the accused with the option of having blood work done because the circumstances that would allow for such an option – such as the person being incapacitated or not physically being able to provide the sample – did not exist in this case.

[74] The accused was not unconscious or on the verge of unconsciousness; he was physically capable of providing the samples, as he did.

[75] The information the police had was that it could, from a medical perspective, proceed with the procedure. It is therefore unclear that obtaining the breath tests was “impracticable” in the circumstances: a room was made available at the hospital; the police were not interfering with medical steps that needed to be taken – they had awaited the CT scan as directed, and there is no indication that the procedure was holding up the surgery; and Mr. Carrillo demonstrated pain, but he did not express an opposition to sitting up or to performing the tests, even though legal advice had been obtained (contrary to the situation in R. v. Taylor, 2014 SCC 50, at para. 41). Had the accused first needed to go to surgery, the police would then clearly have a basis to make a blood demand as it would then be impracticable to proceed with a breath test.

[76] In some circumstances involving obvious pain in providing a breath sample, an alternative should be considered. Given the clear signs of pain and discomfort, the police in this case should perhaps have inquired more into the practicality of performing the breath tests, in particular with Mr. Carrillo. That may well be best practice and it may have been the more appropriate course in this case. But in circumstances where neither the medical professional nor the patient informed the officer that the breath test might occasion or was occasioning excruciating pain, I am unable to find that the failure to do so constituted a violation of s. 7 of the Charter.

[77] I note that it is uncertain that obtaining a warrant for the blood that had already been taken for medical purposes would have been fruitful. The more likely outcome is that Mr. Carrillo would have had to provide additional blood for investigative purposes: see Taylor, at paras. 11-12. Had that occurred, there may have been an argument that the police had proceeded with a more intrusive procedure than was necessary in the circumstances. And this procedure may also have occasioned pain or discomfort.

[78] The police had no obvious alternative, and no reason to believe the breath samples could not be obtained, or at least that doing so would be unduly oppressive.

[79] If there was a sufficient impairment of Mr. Carrillo’s security interest to engage s. 7 in the present case, in my view the deprivation occasioned was not contrary to the principles of fundamental justice. Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 592-95.

[80] If I am wrong about this conduct not constituting a violation of section 7, and even though of little assistance to reviewing courts, I would not have ordered a stay of the proceedings or excluded evidence based on that breach alone. The officers otherwise appeared considerate and proceeded in good faith. They were not very experienced officers, and such events do not arise in the run-of-the-mill impaired investigation. I have no evidence that this is a systemic issue. Tellingly, I was provided no case with similar facts. Similar occurrences would need to be assessed on a case-by-case basis, as testified to by the breath technician.

[81] I therefore cannot find a breach of Mr. Carrillo’s s. 7 Charter right.

Evidence of impairment

[82] Mr. Carrillo provided breath samples and I accept that he had a blood alcohol level of 130 mg in 100 mL of blood. The evidence also establishes beyond a reasonable doubt that he was operating a motor vehicle just prior to the police attending at the scene of the collision. I find that the Crown has proven all the elements of the Over 80 offence.

[83] I must still consider whether the Crown has proven the elements of the offence of impaired driving beyond a reasonable doubt, including proof of impairment.

[84] There is no prescribed test for determining impairment, such as a “marked departure” from normal behaviour. Any degree of impairment ranging from slight to great is sufficient to make out the offence: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), affd , [1994] 2 S.C.R. 478.

[85] However, it cannot be assumed that where a person’s functional ability is affected in some respects by the consumption of alcohol, his ability to drive is also automatically impaired. Where the proof of impairment consists of observations of conduct, in most cases, if the conduct is a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that the ability to drive was impaired by alcohol: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392, leave to appeal to S.C.C. refused 106 C.C.C. (3d) iv.

[86] Here, I have found that the officer had reasonable grounds to believe that the accused’s ability to drive was impaired by alcohol. It does not follow that the factors that were considered in support of those grounds establish impairment beyond a reasonable doubt.

[87] Officer Vondercrone’s observations regarding the smell of alcohol and the admission of alcohol intake merely show that alcohol was consumed.

[88] In addition to the factors set out by the arresting officer, I have evidence from the Qualified Breath Technician that relate to Mr. Carrillo’s appearance: his face was flushed and his eyes were watery and red. He also smelled a weak odour of alcohol. As argued by the defence, some of these indicators can be explained by the fact that Mr. Carrillo had been crying. In any event, these additional factors are also merely indicative of the consumption of alcohol.

[89] I do not have any indication that this consumption in fact affected Mr. Carrillo’s motor skills or his ability to drive. There was no evidence that his fine motor skills were impacted. Nor that he was walking unsteadily or that his speech was slurred. While the officers’ ability to observe some of these potential indicators of impairment was limited due to Mr. Carrillo’s injury and resulting physical condition, it does not change the fact that the evidence of such impairment is non-existent. Officer Daryaram confirmed that Mr. Carrillo’s speech was good.

[90] What is left is evidence of the collision. I find that while the fact that Mr. Carrillo was potentially at fault for this collision could provide some grounds to believe that he was impaired, it does not suffice to prove beyond a reasonable doubt that he was, despite the presence of other indicators of impairment. Although the scenarios referenced above suggest some misjudgment or misperception on Mr. Carrillo’s part, I cannot conclude that this was necessarily impacted by the alcohol consumption. Indeed, misperceptions while driving regularly happen in the normal course.

[91] I also have very limited evidence regarding the pedestrian’s speed, no evidence regarding the other vehicle’s speed or how the pedestrian was dressed, and it was dark out at that time of day. These are all factors that can otherwise tend to explain the collision, short of any impairment of Mr. Carrillo’s ability to drive that day.

[92] At the end of the day, I cannot state that his behaviour was even a slight departure from normal conduct. I therefore cannot be satisfied beyond a reasonable doubt that his ability to drive was impaired by alcohol on that fateful day of August 2022.

[93] I therefore acquit Mr. Carrillo of impaired driving but find him guilty of having a blood alcohol in excess of 80 mg/100 mL of blood.

Released: November 21, 2023 Signed: Justice Mainville