ONTARIO COURT OF JUSTICE

DATE: 2024 11 26 COURT FILE No.: Toronto 23 48102315

BETWEEN:

HIS MAJESTY THE KING

— AND —

PETER KELL

Before: Justice Robert Wright

Heard on: November 4 – 5, 2024 Reasons for Judgment released on: November 26, 2024

Counsel: Maressa Singh.................................................................................... counsel for the Crown Aravind Pillai........................................................... counsel for the defendant Peter Kell

R. WRIGHT J.:

[1] Peter Kell stood trial for two counts: Operation of a conveyance while impaired by alcohol and Refuse breath sample.

[2] The Crown alleged he operated his conveyance, a motor vehicle, while impaired by alcohol on the morning of March 19, 2023, and that he became involved in a single-motor vehicle collision with a tree. The Crown further alleged that officers investigating the collision properly arrested Mr. Kell for impaired operation and made a proper demand that he provide samples of his breath into an approved instrument and that he accompany them for that purpose, which he refused.

[3] Mr. Kell brought an application alleging a violation of his rights under s. 10(b) of the Charter. He submits that the police were required to provide a Prosper-style warning upon his waiver of the exercise of his rights to counsel in the circumstances of this case. He seeks exclusion of his refusals to provide a sample as the remedy under s. 24(2).

[4] Mr. Kell acknowledges that if the Charter exclusion is unsuccessful that Crown has proven his guilt on both counts beyond a reasonable doubt. In the event that the evidence of refusal is excluded, the Crown submits it has proven Mr. Kell's guilt on the count of Impaired Operation beyond a reasonable doubt by circumstantial case, even without the presumption that would arise from the evidence of refusal.

[5] The parties were helpfully able to narrow the issues for me to decide to two:

(1) Should Mr. Kell's refusal be excluded from evidence due to a violation of his rights under s. 10(b) of the Charter? (2) Has the Crown proven that he operated his motor vehicle while impaired by alcohol (is the only available inference that he operated his motor vehicle while impaired by alcohol)?

[6] The onus during a criminal trial begins and ends with the Crown to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the trial unless and until the Court is satisfied that the charge has been proven beyond a reasonable doubt. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the Crown has proven any element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that either, or both, of the charges are proven, Mr. Kell will be acquitted of the charge or charges.

[7] Where the case against an individual is circumstantial, proof beyond a reasonable doubt requires that the Crown prove that there is no available inference other than guilt. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. Evidentiary gaps may result in inferences other than guilt, but those inferences must be reasonable and not speculative given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. Other plausible theories and other reasonable possibilities which are inconsistent with guilt must be considered and the Crown must negative these reasonable possibilities.

[8] With respect to the Charter Application, the burden is on Mr. Kell to satisfy the Court that there has been a breach of his rights and that evidence should be excluded pursuant to s. 24(2). Where the Crown asserts a waiver of s. 10(b) rights, the burden shifts to the Crown to prove a valid waiver.

Issue 1: S. 10(b) of the Charter

Law

[9] Section 10 of the Charter states:

Everyone has the right on arrest or detention:

(b) to retain and instruct counsel without delay and to be informed of that right;

[10] The purpose of s. 10(b) is to provide an individual who has been arrested or detained with an opportunity to obtain legal advice relevant to their legal situation: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. More specifically, the purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Sinclair, [2010] 2 S.C.R. 310, at para. 26. The emphasis is on ensuring that a detainee’s decision to cooperate or not cooperate with an investigation is free and informed.

[11] The s. 10(b) rights of motorists are suspended at the roadside when police, prior to advising motorists of their right to counsel, take steps to assess sobriety in order to determine whether there are grounds to make a demand under the Criminal Code for an approved instrument test: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 49-53 (these police powers are now found in sections 320.27 and 320.28 of the Criminal Code). This limit has been found justified under s. 1 of the Charter because of the importance of reducing the harm caused by impaired driving: R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3, at paras. 54-60; R. v. Breault, 2023 SCC 9, at para. 6.

[12] Compliance with s. 10(b) does not necessarily require an officer to inform a detainee that, should the detainee choose to contact counsel, contact will occur when they are brought to the station as opposed to when they are at the roadside: R. v. Devries, 2009 ONCA 477.

[13] S. 10(b) imposes a number of duties on detaining officers: (1) the duty to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, the duty to provide the detainee with a reasonable opportunity to exercise this right; and (3) the duty to refrain from eliciting evidence from the detainee until they have had that reasonable opportunity. The first duty is informational, while the second and third are implementational in nature and are not triggered until a detainee actually indicates a desire to exercise the right to counsel: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 30.

[14] The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise or will be suspended: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27.

[15] When a diligent detainee is unsuccessful at contacting counsel, changes their mind and decides not to continue pursuing contact with counsel, s. 10(b) mandates that the police explicitly inform the detainee of their right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to as a “Prosper warning,” ensures that a detainee is informed that unsuccessful attempts to reach counsel do not exhaust their s. 10(b) right, that any choice to speak with the police does not derive from such a misconception, and that a decision to waive the right to counsel is fully informed: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 32.

[16] There is no constitutional right to have a lawyer present during a police interaction, nor to have counsel speak to the police on a detainee's behalf: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 34-38.

[17] If circumstances indicate that a detainee who has seemingly waived the right to counsel may not have actually understood that right, the police should reiterate the right to consult counsel to ensure that the purpose of s. 10(b) is fulfilled: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 52).

Evidence

[18] Both investigating officers testified for the Crown. Their interaction with Mr. Kell was recorded on a body-worn camera, which became an exhibit at the trial.

[19] PC Harminder Sian of Toronto Police Service, Traffic Services, testified to his interactions at the scene with Mr. Kell. Once he had taken initial statements from civilian witnesses who had identified Mr. Kell as the driver, he went to speak with Mr. Kell. Mr. Kell was standing at the roadside. PC Sian observed some blood and injury to Mr. Kell's hands. PC Sian asked Mr. Kell if he was injured. Mr. Kell responded by asking PC Sian if he was injured.

[20] PC Sian testified that he asked Mr. Kell for his identification. Mr. Kell responded by asking for PC Sian's identification. During this discussion, PC Sian smelled the odour of alcohol on Mr. Kell's breath. He asked Mr. Kell if he had consumed alcohol and received a positive response.

[21] PC Sian asked for Mr. Kell’s license. Mr. Kell refused to provide his identification. PC Sian told him he was under investigation for impaired driving. Mr. Kell wanted to have PC Sian to speak to his lawyer. He opened his wallet and appeared to be looking for a number. He had a cellular phone with him and then appeared to be trying to find the phone number in it while standing with PC Sian. He said, “Why don't I give you my lawyer's number and you can talk to my lawyer.” He gave a first name for his lawyer, Mustafah. PC Sian asked for his last name. Mr. Kell said “she.” PC Sian asked, “Is it a she.” Mr. Kell said, “Hmmm hmmm.” PC Sian waited for Mr. Kell to get the number. Mr. Kell went back to the driver side of the car where he dropped and retrieved his key fob and then banged his head on the door when he opened it. PC Sian decided Mr. Kell was impaired by alcohol and would injure himself if he let him continue moving about and decided to arrest him.

[22] At 10:32 AM PC Sian placed Mr. Kell under arrest for impaired operation of a conveyance. He advised Mr. Kell of the charge. Mr. Kell was read his rights to counsel at 10:33 AM. PC Sian performed a safety pat-down search while his escort read the rights. Mr. Kell continuously interrupted the officers during these discussions, including saying such things as “I don't give a fuck what you say.” Mr. Kell was asked if he understood his rights, and he said he did.

[23] When asked directly “Do you want to call a lawyer,” Mr. Kell replied “No.” PC Sian then stated, “You don't want to call a lawyer?” Mr. Kell responded, “What for?”

[24] Mr. Kell was then cautioned that anything he said would be used against him.

[25] PC Sian testified that at 10:34 AM, his escort began reading Mr. Kell a demand that he provide samples of his breath into an approved instrument. Mr. Kell laughed and continued to interrupt. The demand was read again. Mr. Kell told PC Sian that he understood the demand but he did not agree with it.

[26] While Mr. Kell was being escorted to the rear of the cruiser, PC Sian spoke to Mr. Kell's wife (who had somehow come to the scene as she had not been in the vehicle at the time of the collision) to try to get contact information for Mr. Kell's lawyer and provide her with some of his personal effects.

[27] PC Sian testified that at 10:43 AM he spoke to Mr. Kell in the rear of the cruiser. He advised him of the consequences of failing to provide a sample. He told him that he wanted to make sure Mr. Kell understood what was at stake if he refused to comply with the demand. The demand was read to him again and he cut the officer off and said “No.” Mr. Kell was asked if he would accompany them to provide a sample and he said “No.” Mr. Kell was told that the jeopardy was the same and his license would be suspended. He responded, “I will get another license…” He was told that the jeopardy for refusing to comply with the demand is the same as with the charge of impaired driving. Mr. Kell responded, “I am ok with that just go ahead and charge me.” The breath demand was read again, and PC Sian said, “We read this demand to you…” Mr. Kell cut him off and said something about deportation. PC Sian's escort read the breath demand again. He asked, “Do you understand?” Mr. Kell replied, “yes, I understand.” Mr. Kell was asked, “Do you want to come with us to provide?” Mr. Kell replied, “NO. NO.”

[28] Mr. Kell then asked the officers to remove his handcuffs. During this discussion, PC Sian said to him, “One more time, I am explaining to you we demand…” Mr. Kell cut him off and stated “No!” PC Sian said, “You are not going to accompany?” Mr. Kell replied “No.”

[29] PC Shashank Vashisht also testified for the Crown. He was PC Sian’s escort that morning. His body-worn camera was the recording entered into evidence.

[30] PC Vashisht testified that Mr. Kell never told the officers that he wanted to speak to his lawyer; Mr. Kell told them he wanted them to speak to his lawyer when at the car. Mr. Kell gave the first name, Mustafa, but was unable to provide a phone number. He mentioned it was a she.

[31] PC Vashisht testified that he read Mr. Kell his rights to counsel after arrest. Mr. Kell kept interrupting, so PC Sian tried to get him to listen. PC Vashist continued reading; Mr. Kell asked him if he was finished and then told him he didn’t give a flying fuck. Mr. Kell told them he understood his rights. He understood the caution. He didn’t want to speak to a lawyer. When read the breath demand multiple times, he said “no, fuck no,” and that he did not agree. When the jeopardy of not complying was explained to him, he said he would get a new license the next day. When the demand was read to him a final time, he said he did not want to go to the station.

Findings and Analysis

[32] The oral evidence of PCs Sian and Vashisht was confirmed by the body worn camera evidence. There really isn't any doubt about how events unfolded at the scene of the collision. The evidence of both officers was internally consistent, and consistent with both the body worn camera and each other. I accept the evidence of both officers. It allows me to make the following findings of fact:

• PC Sian observed some blood and injury to Mr. Kell's hands and asked Mr. Kell if he was injured. Mr. Kell responded by asking PC Sian if he was injured
• PC Sian asked Mr. Kell for his identification. Mr. Kell responded by asking for PC Sian's identification
• PC Sian smelled the odour of alcohol on Mr. Kell's breath. He asked Mr. Kell if he had consumed alcohol and received a positive response
• PC Sian told him he was under investigation for impaired driving
• Mr. Kell refused to provide his identification
• Mr. Kell told PC Sian to speak to his lawyer. He looked for a number in his wallet, then his cellular phone. He gave a first name of Mustafah and agreed with PC Sian that the lawyer was “a she”. He hit his head on the car while trying to go inside the driver-side door
• PC Sian decided Mr. Kell was impaired by alcohol and placed Mr. Kell under arrest for impaired operation of a conveyance at 10:32 AM. He advised Mr. Kell of the charge
• PC Vashisht read Mr. Kell his rights to counsel at 10:33 AM
• Mr. Kell continuously interrupted the officers saying such things as “I don't give a fuck what you say.” PC Vashisht persisted in reading Mr. Kell his rights;
• Mr. Kell was asked if he understood his rights, and he said he did
• When asked directly “Do you want to call a lawyer?” Mr. Kell replied “No”
• PC Sian then stated “You don't want to call a lawyer?” Mr. Kell responded “What for?”
• Mr. Kell was cautioned as to statements to the officers
• At 10:34 AM, PC Vashisht began reading Mr. Kell a demand that he provide samples of his breath into an approved instrument. Mr. Kell laughed and continued to interrupt. The demand was read again
• Mr. Kell said that he understood the demand but he did not agree with it
• Officers asked Mr. Kell's wife if she had contact information for his lawyer. She did not
• At 10:43 AM PC Sian advised Mr. Kell of the consequences of failing to provide a sample
• The demand was read to him again and Mr. Kell cut the officer off and said “No”
• Mr. Kell was asked if he would accompany them to provide a sample and he said “No”
• Mr. Kell was told his license would be suspended and he responded, “I will get another license…”
• Mr. Kell was told that he faced the same jeopardy as an impaired charge and he said, “I am ok with that just go ahead and charge me”
• PC Vashisht read the breath demand again and Mr. Kell replied, “yes, I understand”
• Mr. Kell was asked, “Do you want to come with us to provide?” and he replied, “NO. NO”
• PC Sian said, “One more time, I am explaining to you we demand…” and Mr. Kell cut him off and stated “No!”
• PC Sian said, “You are not going to accompany?” Mr. Kell replied “No”
• Mr. Kell never told the officers that he wanted to speak to counsel
• Mr. Kell was incredibly rude and offensive to both officers over the course of their dealings with him

[33] Mr. Kell submits that, in these circumstances, it was clear to the officers that he wanted to speak to counsel at the roadside and that a Prosper-type warning was required to ensure that his change of mind and waiver of s. 10(b) when arrested for the impaired driving was proper.

[34] The Crown submits that a Prosper warning is not necessary where there has been no request for counsel. Mr. Kell's responses when asked whether he wanted counsel of “No” and “What for” are indicative only of his overall behaviour at that point, which was a refusal to engage with the police in the arrest and their demand, not any genuine confusion such that a further warning or explanation was necessary.

[35] The purpose of a Prosper warning is to ensure that a detainee who wants to waive the right to counsel will understand what is being given up. It is required where an accused has been frustrated in the effort to speak with a lawyer to the point where he gives up; it needs to be clear to a detainee that unsuccessful attempts to reach counsel do not exhaust s. 10(b) rights and to ensure that any decision to speak to police does not flow from any misconception.

[36] That is not the factual situation that Mr. Kell was in. He had not asked to speak to counsel himself when told he was under investigation for impaired operation; he had wanted the officers to speak to his lawyer. While the officers may have at that point told him he could not speak to counsel, he had not asked to speak counsel. PC Sian was still determining whether he had grounds to make a demand and continued discussion with Mr. Kell. When Mr. Kell was arrested shortly thereafter and properly given his rights to counsel, he immediately said, “No.” He repeatedly interrupted the reading of his rights, which PC Vashisht persisted in reading. Mr. Kell advised he understood his rights.

[37] Where an accused declines to speak to counsel when told of his rights without having previously asserted the right or experienced some frustration of attempts to reach counsel, a Prosper warning does not make much sense. To tell the detainee that the police must wait a reasonable time for counsel to call back and must hold off on questioning a detainee or attempting to elicit evidence from the detainee for a reasonable time would not make sense; it is not responsive to the situation: R. v. Kamal, 2020 ONCA 213, at para. 4; R. v. Fountain, 2017 ONCA 596 at para. 27; R. v. Wong, 2016 ONCJ 189, at paras. 17-18; R. v. Ilyassov, [2011] O.J. No. 1155 (O.C.J.), aff’d 2013 ONSC 5252.

[38] Mr. Kell understood he had the right to speak to a lawyer. He had not been frustrated in attempts to reach counsel. He was not confused. He was not being interrogated or questioned. He refused counsel. He was then provided a demand to provide samples into an approved instrument, which he also immediately and repeatedly refused to comply with. Mr. Kell had reached the limit of his cooperation with police and was clearly refusing and not going to comply with any investigation or demand. Rather, he did what he could to belittle both officers while they tried to ensure his rights were respected and that he understood what was being demanded of him.

[39] It is not the job of the police to persuade, negotiate or provide legal advice in order to obtain compliance with a breath demand: R. v. Sures, 2010 ONSC 1622. Essentially, Mr. Kell's argument here boils down to an argument that maybe, had he been provided some further warning that police had to hold off for a reasonable time to allow counsel to be contacted, he would have comported himself differently. That is not what a Prosper warning is for. Nor is it realistically what would have occurred in this case.

[40] There is no breach of s. 10(b) of the Charter in these circumstances, and the Charter Application is dismissed.

[41] Mr. Kell conceded that the offence of Refuse was proven beyond a reasonable doubt if Mr. Kell's refusals were not excluded from evidence. I agree. The demand was valid. The words of refusal were clear, unequivocal, and uttered after a full explanation of the consequences of failing to comply with the demand were explained to Mr. Kell. A finding of guilt is entered on that count.

Issue 2: Has the Crown proven that he operated his motor vehicle while impaired by alcohol (is the only available inference that he operated his motor vehicle while impaired by alcohol)?

[42] Mr. Kell conceded that the elements of Impaired Operation were proven beyond a reasonable doubt if Mr. Kell's Refusal was proven due to s. 320.31(10) of the Criminal Code, which permits evidence of the Refusal to be used to draw an adverse inference against the accused on a trial for Impaired Operation.

[43] While I agree that the elements of Impaired Operation have been proven beyond a reasonable doubt, I do not agree that the adverse inference from s. 320.31(10) is necessary for a finding that the offence is proven beyond a reasonable doubt. In the event that the Refusal had been excluded from evidence, I am still satisfied that the Crown has proven that Mr. Kell operated his motor vehicle while impaired by alcohol on March 19, 2023, colliding with a tree.

Law

[44] Criminal impairment of the ability to drive is the impairment by drug or alcohol of one's judgment and/or the decrease in one's physical abilities. Any degree of impairment is sufficient, provided the Crown proves that the driver was impaired to the required criminal standard, which is proof beyond a reasonable doubt: R. v. Stellato, [1994] S.C.J. No. 51, aff'g 1993 ONCA 3375.

[45] It is the ability to drive that must be proven to be impaired by the consumption of alcohol. Where the Crown attempts to establish proof of the impairment of the ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from “typical behaviour” to a degree that the required onus of proof be met. Deviation from a norm or “typical conduct” is a useful tool in assessing the evidence. Where the evidence indicates that a driver's ability to walk, talk and perform basic motor functions or tasks of manual dexterity was impaired by alcohol, the logical inference may be drawn that the driver’s ability to drive was also impaired: in most cases, if the conduct of the driver was a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that his ability to drive was impaired by alcohol: R. v. Andrews, [1996] A.J. No. 98 at paras. 23, 19-20, 29 (C.A.), leave refused [1996] S.C.C.A. NO. 115; R. c. Belle-Isle, 2021 QCCA 600 at para. 24.

[46] The Crown must also show that impairment was due to alcohol or drug. Symptoms of impairment that are not proven to be a result of the consumption of alcohol or drug are not sufficient: R. c. Jobin, [2002] J.Q. No. 575 (C.A.) at para. 53.

[47] The manner of operating the vehicle may be evidence of the condition of the driver. Evidence of bad driving is not an essential element, but it may be one of the indicia from which a trial judge may conclude that the driver was impaired: R. v. Grant, 2014 ONSC 1479.

[48] The question of whether the Mr. Kell was impaired by alcohol while operating the conveyance is a question of inference. In order to find the him guilty of impaired driving, the Court must be satisfied that guilt is the only available inference to be drawn on the basis of the totality of the evidence accepted. Where there are other conceivable inferences, the Court must determine whether another proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33 at paras. 55-56.

Evidence

[49] It was an admitted fact at trial that Mr. Kell drove his motor vehicle and that he collided with the tree. Further evidence of the manner of Mr. Kell's driving came from a civilian witness and video evidence from a house proximate to the location where Mr. Kell was arrested.

[50] Genaro Molina testified that he was driving eastbound. Mr. Kell's car was travelling the other direction coming up to him in a curve in the road. He moved toward the curb in his lane to avoid the car. He narrowly avoided being hit; he had to go over the curb in order to avoid the collision. Mr. Kell's vehicle was driving at least 10 km over the speed limit. Mr. Kell's car continued up over a snowbank, through a light standard, and head on into a tree.

[51] Isai Benitez resided on the same street. He had a camera outside of his residence, which recorded Mr. Kell's driving. On the video, Mr. Kell's car appears to swerve from side to side of the road before reaching Mr. Molina's car. Mr. Molina's car can be seen veering to the right to avoid contact with Mr. Kell. Mr. Kell's vehicle then continues at speed up off the roadway through the yard of Mr. Benitez. The collision with the light standard and tree cannot be seen on the video. The roadway can be seen. It is clear. There is also no fog, rain or snow; it appears to be a clear, dry day.

[52] Mr. Benitez approached the collision scene. He made observations of Mr. Kell: speech-wise all over the place, bit of confusion, didn’t want to be looked at, a bit aggressive as well, and also very nervous and kind of like he was trying to keep a distance from everyone else. He believed that Mr. Kell could be intoxicated. His words were slurred. Mr. Benitez came within three feet of him. He smelled the odour of alcohol, but not strongly. He believed the odour to be coming from Mr. Kell. He smelled it when he was close to Mr. Kell, and the others on scene were farther away.

[53] Ginna Ferzoco testified that she heard a loud bang, turned, and saw Mr. Kell's vehicle had collided with the tree. She went to the driver side to assist. Mr. Kell needed help walking; he was leaning on a male who helped him out and he seemed amused and was smiling. He then walked on his own and did not need to remain seated. She did not believe him to be seriously injured, but there was an injury to his hands.

Findings and Analysis

[54] Mr. Molina's evidence of driving is confirmed by the video evidence. There are no inconsistencies in his evidence. I accept his evidence of Mr. Kell's driving, as supported by the video.

[55] Mr. Benitez, Ms. Ferzoco and PC Sian all saw similar behaviour from Mr. Kell over their dealings with him. Mr. Benitez and PC Sian both smelled alcohol. PC Sian detected it from Mr. Kell's breath.

[56] Their evidence confirms the evidence of each other. I accept that the odour of alcohol was coming from Mr. Kell's breath. I also accept that he was showing some indicia of impairment including confused speech, slurred speech, unsteadiness, and amusement that seemed out of place. This behavioral indicia of impairment continued in his dealings with PC Sian as I have made in my earlier findings.

[57] The video evidence shows nothing in the roadway or the weather that would account for Mr. Kell's bad driving and the collision. Mr. Kell was swerving across the road and nearly collided with Mr. Molina's car, then mounted the curb off the roadway and into a tree. The evidence of bad driving followed by the indicia of impairment and the odour of alcohol on Mr. Kell's breath when PC Sian investigated satisfy me that the only available inference is that Mr. Kell was operating his motor vehicle while impaired by alcohol.

[58] I have considered whether another inference could be available, including whether Mr. Kell's post-collision behaviour could have been due to the collision. While such an inference might account for some of his behaviour, it would not account for the bad driving or the odour of alcohol. In all of these circumstances, that inference would be speculative.

[59] A finding of guilt is also entered on the count of Impaired Operation.

Released: November 26, 2024 Signed: Justice R. Wright