ONTARIO COURT OF JUSTICE
DATE: 2025 06 04
COURT FILE No.: Sudbury 4011-998-23-40102978-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
MICHAEL PENTLAND
Before Justice G. Jenner
Heard on January 14, March 20, and April 24, 2025
Reasons for Judgment released on June 4, 2025
Adam Lachance.................................................................................. counsel for the Crown
Mikael Savitsky............................................................................... counsel for the accused
I. Introduction and Issues
[1] Mr. Pentland is charged with (i) impaired operation of a conveyance and (ii) having a blood alcohol concentration (BAC) equal to or above 80 mg of alcohol in 100 mL of blood within two hours of operating a conveyance (“80 plus”).
[2] It is alleged that on August 21, 2023, Mr. Pentland was driving too closely behind Mr. Maverik Cuff’s vehicle when Mr. Pentland’s vehicle left the roadway and collided with a driveway raised above the ditch. Mr. Cuff stopped to assist. When police arrived, Mr. Pentland was in the ambulance. Cst. Vachon made an approved screening device (“ASD”) demand, which Mr. Pentland failed. Mr. Pentland was arrested, brought to the police detachment, and was required to provide breath samples. The lower of his two readings was 230 mg of alcohol in 100 mL of blood.
[3] On consent, the trial proceeded as a blended voir dire addressing a Charter application and the voluntariness of certain alleged utterances.
[4] The evidentiary issues to be determined are:
(1) Voluntariness: were Mr. Pentland’s utterances at the police detachment concerning his identity as the driver of the crashed vehicle, the cause of the accident, and his level of intoxication voluntary?
(2) Grounds for ASD demand: were Mr. Pentland’s rights under ss. 8 and 9 of the Charter infringed because, when Cst. Vachon detained Mr. Pentland and made an ASD demand, he lacked the requisite reasonable suspicion that Mr. Pentland had alcohol in his body?
(3) Timing of ASD demand: was Mr. Pentland’s right under s. 8 of the Charter infringed because Cst. Vachon’s ASD demand was not made immediately upon his developing a reasonable suspicion?
(4) Delay in right to counsel: was Mr. Pentland’s s. 10(b) Charter right breached because Cst. Vachon failed to provide the informational component of the right without delay?
(5) Counsel of choice: was Mr. Pentland’s s. 10(b) right breached because Cst. Vachon did not provide Mr. Pentland with a meaningful opportunity to contact counsel of choice?
(6) Charter remedy: if any of the alleged Charter breaches are made out, ought the evidence to be excluded?
[5] The ultimate issues to be determined are:
(7) Identity and care and control: was Mr. Pentland in care and control of the crashed motor vehicle at the relevant time?
(8) Impairment: was Mr. Pentland’s ability to operate his vehicle impaired by alcohol?
[6] The parties agree the additional issue of whether Mr. Pentland had a BAC ’80 plus’ turns entirely on the Charter application. That is, if the application fails to exclude the breath readings, then this element of the 80 plus offence is proven. If the application succeeds in excluding the breath readings, there must be an acquittal on that count.
[7] The court heard from the following witnesses: (i) Mr. Maverik Cuff, a civilian motorist who partially observed the motor vehicle accident and stopped to assist; (ii) OPP Cst. Vachon, the first officer to arrive on scene, and the arresting officer; (iii) Cst. Dokis, a second officer who attended the accident scene; and (iv) Cst. Joyal, the breath technician.
II. Analysis
2.1 Voluntariness
[8] The Crown failed to prove beyond a reasonable doubt that Mr. Pentland’s utterances to the breath technician, Cst. Joyal, were voluntary. I must weigh the entire circumstances surrounding the statements, but the determining factor in this case was the inducement contained in the following exchange shown on the booking room video:
Officer: Okay, so Michael, if you don’t cooperate, you don’t cooperate.
Mr. Pentland: I’ll cooperate.
Officer: You’ll be here all night if you don’t cooperate.
[9] The Crown points out this exchange occurred after Mr. Pentland provided a fictional name as his legal counsel of choice. The Crown suggests the officer’s statement here is an unfortunately worded but ultimately innocuous caution to curb Mr. Pentland’s insincere behaviour. That may have been the officer’s intention, but I do not find the comment to be innocuous. A reasonable interpretation of the officer’s retort is that failure to cooperate would mean Mr. Pentland would be held in custody overnight.
[10] Not every threat or inducement will render a statement involuntary. In R. v. Spencer, 2007 SCC 11, at para. 15, Deschamps J., writing for the majority, stated that “while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.”
[11] The accuracy of a threat or inducement, while not determinative, is a relevant factor: see, for example, R. v. Othman, 2018 ONCA 1073, para. 16; R. v. Backhouse, 2005 ONCA 4937, paras. 120-121. The officer’s statement here was inaccurate. While lack of cooperation might have slowed the investigation and delayed Mr. Pentland’s release, complete non-cooperation, including by refusal to comply with breath tests, would more likely see Mr. Pentland charged with that additional offence. That would not necessarily translate to an immediate release, but it would not cause him to be held meaningfully longer than if he was fully cooperative.
[12] The prospect of spending a night in a detention cell is no small matter. I am concerned that the officer’s statement may have influenced Mr. Pentland to opt to answer questions he might not have otherwise. The subsequent cautions given by Cst. Joyal were general in nature and not specific enough to dispel the risk of the inducement. The Crown’s onus is high. It must establish voluntariness beyond a reasonable doubt. The Crown has not met that standard here. Impaired driving investigations often require officers to navigate vexing and obstructive detainee behaviour, but officers must be cautious not to inaccurately convey to detainees that their liberty is contingent on cooperation.
2.2 Grounds for ASD demand
[13] Cst. Vachon possessed the necessary grounds to make the ASD demand. He subjectively believed Mr. Pentland both operated a motor vehicle in the previous three hours and had alcohol in his body. This belief was objectively reasonable. Cst. Vachon testified that he was dispatched to a motor vehicle collision. His first point of contact on scene was an ambulance attendant who told him that the male involved in the accident was being assessed medically, that they could smell alcohol on the male’s breath, and that the male admitted he had consumed two beers the night before. When he spoke to Mr. Pentland in the ambulance, Cst. Vachon could himself smell alcohol on Mr. Pentland’s breath, and noted he had red and glossy eyes and slurred speech. Cst. Vachon testified he had reasonable suspicion to believe that Mr. Pentland had alcohol in his body.
[14] The defendant urges me to reject Cst. Vachon’s evidence because the civilian witness, Mr. Cuff, did not detect an odour of alcohol on Mr. Pentland, and that the in-car video evidence of Mr. Pentland’s transport from the scene does not demonstrate any slurred speech or indicia of impairment. There is nothing inconsistent between Cst. Vachon detecting an odour of alcohol in the enclosed space of the ambulance and Mr. Cuff’s not having detected such an odour while interacting with Mr. Pentland outdoors. I do not find the video evidence of Mr. Pentland at any stage of the investigation undermines Cst. Vachon’s testimony as to his observations. In any event, the information conveyed to Cst. Vachon by the ambulance attendants would, standing alone, constitute grounds to suspect alcohol in Mr. Pentland’s body. Cst. Vachon’s evidence on these points was uncontradicted, and I accept it. This ground of the Charter application fails.
2.3 Timing of ASD demand
[15] The defendant argues that Cst. Vachon’s ASD demand was unlawful because after forming his grounds Cst. Vachon delayed and did not make the demand immediately.[^1] Section 320.27 of the Criminal Code says nothing about the period between an officer forming the grounds for a demand and the making of the demand. However, like its predecessor, s. 254(2) of the Criminal Code, the provision has been interpreted to have an ‘immediately’ or ‘forthwith’ requirement: R. v. Quansah, 2012 ONCA 123, paras. 24-44; R. v. Woods, 2005 SCC 42, para. 15; R. v. Breault, 2023 SCC 9, para. 34.
[16] Cst. Vachon’s evidence was that he arrived at the scene at 2:56 pm. He parked on the opposite side of the highway from the accident. He made observations of the scene and made his way to the ambulance. Outside the ambulance he spoke to one ambulance attendant. He then spoke to his colleague, Cst. Dokis. They had a conversation about the male in the ambulance, and about who would speak to witnesses at the scene. Cst. Vachon then entered the ambulance where Mr. Pentland was being assessed. He identified Mr. Pentland and made further observations: the odour of alcohol on breath, red and glossy eyes, and slurred speech. At 3:13 pm, he made the ASD demand. The defence challenged him as to whether description of events would realistically take the 17 minutes he said elapsed between his arrival and the demand. Cst. Vachon agreed the various events were brief but was not able to provide any answer beyond that. Cst. Vachon agreed that after speaking to the ambulance attendant outside the ambulance, and before entering the ambulance, he was starting to develop suspicion.
[17] I accept that, subjectively, Cst. Vachon’s grounds to make an ASD demand crystalized when he was in the ambulance with Mr. Pentland. It would, in my view, have been reasonably open to him to form such a belief based on the information provided to him by the ambulance attendant outside the ambulance. If, however, he did not in fact form a subjective belief, an earlier objective basis is immaterial: R. v. Franco, 2024 ONSC 2444, para. 12.
[18] But were I to reject Cst. Vachon’s evidence on this point; were I to find he is being disingenuous about when his reasonable suspicion crystalized, I would still not find an infringement of the applicant’s Charter rights, on the basis that any associated delay would have occurred before Mr. Pentland was detained. The implicit immediacy requirement in a case where the delay precedes a detention must be approached differently. I cannot summarize the justification for this more effectively than Davies J. has recently in R. v. Franco, 2024 ONSC 2444, paras. 16-18:
There is, of course, jurisprudence that states that the police are required to make a demand immediately if they intend to do so. The Criminal Code does not explicitly require a police officer to make the demand immediately after establishing reasonable grounds to suspect the driver has alcohol in their body. However, Canadian courts have repeatedly held that, to be constitutional, s. 320.27(1) of the Criminal Code (and its predecessor) must be interpreted to mean that the police have an implicit obligation to make a demand as soon as they form the reasonable suspicion that the driver has alcohol in their body: R. v. Breault, 2023 SCC 9 at para. 34, R. v. Quansah, 2012 ONCA 123 at paras. 24 to 44, R. v. Woods, 2005 SCC 42 at para. 15, R. v. Pierman (1994), 19 O.R. (3d) 704 at para. 5. This is because the police are allowed to detain the driver for the purpose of seizing a sample of their breath without giving the driver an opportunity to speak to counsel before the sample is taken. The statutory power to demand a breath sample before the driver has an opportunity to speak to counsel has been found to be a reasonable limit on the driver’s Charter rights because of “the extreme danger” posed by impaired drivers, but only if the police exercise that power without delay: Quansah at para. 22.
The cases on the constitutionality of s. 320.27(1) of the Criminal Code (and its predecessor) were decided in the context that the driver had been detained by the police before the demand was made. For example, in Pierman at para. 5, Arbour J.A. (as she then was) explained the rationale for requiring the police to make the demand as soon as they have reasonable grounds to suspect the driver has alcohol in their body as follows:
This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(b) of the Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe on a suspect's right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken "forthwith". It follows, in my view, that for the section to maintain its constitutional integrity, we must assume it also contemplates that there be no opportunity for the suspect to consult counsel before the demand is made.
However, in R. v. MacMillan, 2013 ONCA 109, the Court of Appeal for Ontario held that “greater flexibility” is permitted if the driver is not detained between the time the officer forms the grounds to make a demand and when the demand is made. The court made that finding because the rights under ss. 9 and 10 of the Charter are not engaged if the driver is not detained. In other words, if the driver is not detained, any delay between the officer formulating grounds and making the demand will not interfere with the driver’s Charter rights and the need for immediate action on the part of the police disappears.
[19] I note further that the court in MacMillan, applying a flexible approach, tolerated a 29-minute delay while the suspect was not detained as reasonably necessary in the circumstances: para. 39.
[20] Adopting a flexible approach here, Cst. Vachon was not conducting a standard vehicle stop. He was responding to a motor vehicle collision. He made observations of the scene. He spoke to his colleague, Cst. Dokis, to determine who would be responsible for speaking with witnesses at the scene. He spoke to the ambulance attendant about the suspected driver they were assisting. Mr. Pentland was being seen by another ambulance attendant, a process Cst. Vachon was required to be sensitive to. Cst. Vachon’s approach was reasonably necessary, and in the context of Mr. Pentland not being detained by police, I do not find that Cst. Vachon breached any temporal obligation with respect to the demand.
2.4 Delay in right to counsel
[21] The defence complains of a four-minute delay between the arrest and Cst. Vachon’s providing Mr. Pentland with the informational component of the s. 10(b) right to counsel. This is argued as a breach of the immediacy requirement upheld in R. v. Suberu, 2009 SCC 33, para. 42.
[22] Cst. Vachon’s evidence is that the arrest occurred at “approximately 3:14 pm” and that he read Mr. Pentland the standard right to counsel language at “approximately 3:17 pm”. I note that the times given are approximate—understandable given the dynamic reality of police duties—and that it is not necessarily the case that a full four minutes elapsed between these events. In any event, examining the evidence as to what occurred in this short timeframe, I am not persuaded that Cst. Vachon failed to comply with the immediacy component of the right to counsel.
[23] Cst. Vachon testified that he advised Mr. Pentland that he was going to be arrested. He showed him the result of the ASD. He attempted to explain that “he was involved in a motor vehicle collision, that [the officer] could smell alcohol, and that he had registered a Fail on the approved screening device.” He was attempting, not succeeding, because as Cst. Vachon was trying to explain that Mr. Pentland would be going back to the station to provide proper samples of his breath, Mr. Pentland was talking over him, trying to relay his own information. Additionally, the ambulance attendants were providing their own information, and advising that they were clearing Mr. Pentland medically, indicating there were no injuries that would require a hospital attendance. These things were all happening at once. Cst. Vachon was trying to listen as well, and to be polite and respectful.
[24] Cst. Vachon was unshaken on this point in cross-examination, testifying that,
…before I could finish all this, which was a time delay to get to my Rights to Counsel and Caution, he kept talking and making those comments. So, by the time I was able to finish explaining to your client those steps that I want or those things that I wanted to tell him, with the comments that he was telling me, that’s the time that I was able to provide the Rights to Counsel, was at the time that I provided in my notes.
[25] Cst. Vachon added that he tried several times to ask Mr. Pentland to stop speaking so he could finish explaining what he needed to. He was cross-examined as to why this was not reflected in his notes. I do not find this to be the type of information that would make it into an officer’s notebook. I do not find the omission to be of concern.
[26] In R. v. Lee, 2023 ONCJ 251, paras. 52-54, a brief two-minute delay in providing the informational component of s. 10(b) rights was justified where the officer was allowing for paramedics to see to the accused. In this case, I am not persuaded of a breach following a delay of mere minutes given (i) the officer was attempting to explain the reason for the detention—itself a constitutional imperative pursuant to s. 10(a) of the Charter, (ii) the detainee was interrupting and talking over the officer, and (iii) paramedics were executing their own important duties. This ground of the application is dismissed.
2.5 Counsel of Choice
[27] Cst. Vachon testified he read the accused the standard right to counsel language, which includes a specific direction that the detainee has “the right to telephone any lawyer [they] wish,” and information about the availability of free advice from a Legal Aid lawyer. Mr. Pentland responded at first by advising he did not understand. Cst. Vachon explained the right to counsel a second time, using his own words. In response, Mr. Pentland would not say whether he understood his rights to counsel but said he was not drinking, before ultimately providing the name of a lawyer, “Labr”, of Toronto. Mr. Pentland could not provide a full name or a phone number. Cst. Vachon acknowledged this request and indicated Mr. Pentland would be provided the opportunity to call the lawyer. Mr. Pentland was then cautioned, read the breath demand, and transported to the police detachment.
[28] Cst. Vachon testified that at the detachment booking area he again explained to Mr. Pentland his rights to counsel. Mr. Pentland advised that he had made up the name ‘Labr’. He said he did not have a lawyer. Cst. Vachon then asked Mr. Pentland if he would like duty counsel called on his behalf, or if he wanted to pick a lawyer of his choice. Mr. Pentland declined to call or lawyer or to speak with duty counsel.
[29] The audio/video recording at the detachment which was admitted into evidence on consent confirms this exchange and offers greater detail:
Station Officer: …So when I read you your right to counsel, you only gave me one name for your, for lawyers.
Mr. Pentland: I do not have a lawyer.
Station Officer: Okay, so what was the first name that you gave? What? I can’t hear you.
Mr. Pentland: I made it up.
Mr. Pentland: I don’t need a lawyer.
Cst. Vachon: Would you like to, would you like to speak with one? Would you like to, would you like for us to call duty counsel for you, which is free legal advice for your, because it’s your right? And this is my third time telling you this. I told you twice in the ambulance with EMS. I’m telling you again, you gave me a bogus name in the ambulance… That didn’t make any sense at all.... But again, we are here right now. It’s your right. If you want to speak to a specific lawyer, you have one?
Mr. Pentland: I do not have one.
Cst. Vachon: Or ok, if you do not have one that’s fine. You can, we can try to find a lawyer for you. You can choose.
Mr. Pentland: Why do I need one?
Cst. Vachon: Well, because right now you’re under arrest for impaired driving by alcohol. When someone gets under arrest, it’s their right to speak, if they want to talk to a lawyer or a duty counsel. We can call duty counsel for you if you’d like.
Mr. Pentland: I don’t know what that is.
Cst. Vachon: A duty counsel is another. It, it’s a lawyer and they can be from wherever for free legal advice. So it is like another lawyer, they could be from wherever. So they’ll, we call, we request for a lawyer – duty counsel – and they’ll call us back if there’s someone available right away and you get to speak with them.
Mr. Pentland: What’s the other option?
Cst. Vachon: What’s that?
Mr. Pentland: I said what’s the other option?
Cst. Vachon: So you, you, what we’re gonna do is I’m gonna call the lawyer for, and I’m gonna let you talk to a lawyer. I read your right to counsel, I provided you with a number on there and that’s the number that we call for duty counsel. Would you like us to call them? Would you like us to call that number for you? It’s regulated by the Ontario government. It’s a group of lawyers that are free. You don’t want that?
[30] A short time later, Cst. Joyal, the breath technician, takes over for Cst. Vachon, and tells Mr. Pentland the following:
Cst. Joyal: Alright. I just want to go through a couple things here before we start. Did you want to speak to counsel at all? I just gotta re-read you the, um, other rights to counsel. Okay? Right to counsel is your right, is your right to speak to a lawyer, okay? I’m gonna read it to you.. Okay?
[31] Cst. Joyal then re-read the standard right to counsel language, which, again, stipulates that Mr. Pentland can contact “any lawyer [he] wishes” and references the availability of duty counsel. The exchange continues as follows:
Cst. Joyal: Do you understand?
Mr. Pentland: Yes.
Cst. Joyal: Yes.
Mr. Pentland: What if I don’t?
Cst. Joyal: uh, I can explain it to you further.
Mr. Pentland: Can I call one?
Cst. Joyal: That’s your right. How about we call you, if you don’t have a lawyer, we’ll call you duty counsel. And worst-case scenario, you speak to that lawyer. It is free. It’s for people who can’t afford a lawyer. Don’t have a lawyer. It’s a service provided by the province.
Mr. Pentland: I can afford one.
Cst. Joyal: Okay.
Mr. Pentland: But do I wanna call one that?
Cst. Joyal: That’s up to you. You’re an adult. You need to choose.
Mr. Pentland: I’d rather call, call my father.
Cst. Joyal: You, you can call a lawyer.
Mr. Pentland: My father’s a lawyer.
Cst. Joyal: Is your father a lawyer?
Mr. Pentland: Yeah.
Cst. Joyal: Who’s your father?
Mr. Pentland: Dave (inaudible)
Cst. Joyal: Sorry?
Mr. Pentland: Dave.
Cst. Joyal: Dave who?
Mr. Pentland: (inaudible)
Cst. Joyal: So if you, if, if, if you’re gonna, if you’re gonna continue lying-
Mr. Pentland: -I’m not. It’s not a lie.
Cst. Joyal: -you’re gonna be charged. Well is he a lawyer or not?
Mr. Pentland: It doesn’t matter. I’m not calling a lawyer.
Cst. Joyal: You’re not calling a lawyer?
Mr. Pentland: No.
Cst. Joyal: Okay. That’s fine. Okay. So you don’t wish to speak to a lawyer then? Okay.
Mr. Pentland: At this time, no.
Cst. Joyal: At this time, no. Okay, Alright.
(brief pause)
Mr. Pentland: In the future, yes.
Cst. Joyal: What’s that? Sorry?
Mr. Pentland: I said in the future, yes.
[32] These exchanges, considered in their entire context, including the previous discussion in the ambulance, do not give the impression that Mr. Pentland’s options were improperly limited. It may have been beneficial for Cst. Vachon to respond to Mr. Pentland’s question about the “other option” by reminding him again of the option to contact other counsel. It would have been open to either officer to suggest methods of considering other counsel, such as a local list, a phone book, or an internet search. But the officers were not obligated to take such steps. An accused has a duty to be reasonably diligent in attempting to contact counsel: R. v. Willier, 2010 SCC 37, para. 33. Here, Mr. Pentland was advised multiple times that he had the right to contact a lawyer of his choosing. He responded that he did not have a lawyer. He was told the police could try and find a lawyer for him. Mr. Pentland did not pursue that suggestion. He was clearly advised many times about the availability of duty counsel, but he did not accept that offer. He was reminded of the various options when Cst. Joyal re-read the standard right to counsel language.
[33] I further reject the notion that Mr. Pentland sought to contact his father as a conduit to obtaining the name of a lawyer. Had Mr. Pentland communicated he wished to contact his father for this purpose, this may have triggered a further obligation on the police: see R. v. Pileggi, 2021 ONCA 4. But the evidence shows Mr. Pentland initially told police his father was a lawyer. On being pressed, he obfuscated, before telling police that it did not matter because he was “not calling a lawyer.” This exchange placed no obligation on police to continue to make inquiries of Mr. Pentland to implement his s. 10(b) right.
[34] I am satisfied that Mr. Pentland understood his proper options. He clearly knew he could choose a lawyer. He was not steered inappropriately or given a false impression of his choices. He had given the false name of one lawyer, and had offered up another, a family member, which he retreated from when pressed on whether that person was a lawyer. He firmly conveyed that he did not wish to call a lawyer at that time. I reject this ground of Mr. Pentland’s Charter application.
2.6 Charter remedy
[35] Having found no Charter breach, there is no need to consider remedy.
2.7 Identity and Proof of Care and Control
[36] As an essential element of both offences, the Crown must prove beyond a reasonable doubt that Mr. Pentland was in care and control of a motor vehicle. Practically speaking, the Crown must prove Mr. Pentland was the driver of the crashed vehicle (the “MVC Driver”). To meet this onus the Crown must rely on the cumulative effect of evidence that begins with Mr. Cuff and continues through to the arresting and assisting officers.
[37] Once Mr. Cuff witnessed the accident, he drove about 20 feet further, saw a turnaround point, turned his vehicle around, and drove to the crash site as quickly as possible, where he pulled over, put his four-way lights on, and ran over to the other vehicle. He estimated this all took place within approximately 30-45 seconds of the accident. The crashed vehicle was in a ditch past the driveway it had hit. It was upright on its passenger side. The MVC Driver was crawling out of the vehicle. The MVC Driver was the only person in the vehicle. Mr. Cuff’s physical descriptions of the MVC Driver were limited to him being a “shorter man, kind of bald up top.” Neither of these quite generic descriptors is particularly helpful to the Crown, but each is consistent with Mr. Pentland’s appearance.
[38] A dog was present in the vehicle. Mr. Cuff testified that the MVC driver seemed more concerned about his car and his dog than himself. The individual proclaimed his connection to the vehicle when he said “my car is fucked.” Mr. Cuff and the MVC Driver had the dog on a leash, petting him, making sure he was okay as well. Mr. Cuff did not notice any injury, blood, or bruising on the MVC Driver. He did not smell an odour of alcohol. He did describe that the MVC Driver was slurring his words a little bit, though surmised that could have been from the shock.
[39] Mr. Cuff was highly credible. He was quick to say when he did not remember and was not sure. He was thoughtful. He made concessions that could tend to benefit the defence, such as offering up an alternate explanation for the MVC Driver’s slurred speech. His description of the scene of the accident was largely, with one exception to be addressed, consistent with that of Cst. Vachon. I accept Mr. Cuff’s evidence as a generally accurate, if incomplete account of the motor vehicle accident and events at the roadside. I infer from that account that the individual Mr. Cuff observed climbing out of the vehicle was the lone human occupant and was the driver. There was no time for a second individual to exit the vehicle and disappear from the scene before Mr. Cuff arrived. This hardly requires corroboration but is nonetheless strengthened by the fact that the MVC Driver refers to the crashed vehicle as his car, and expresses only concern for the canine occupant, rather than another person. There simply was no other person.
[40] Cst. Vachon’s and Cst. Dokis’s evidence confirms that the man Mr. Cuff interacted with at the roadside was the very same man they interacted with in the ambulance and police detachment, and ultimately the very same Mr. Pentland in court.
[41] When Cst. Vachon arrived on scene, he noted a black Acura SUV on its side. His evidence was that the vehicle was standing upright on the driver’s side as opposed to the passenger side. This is the difference in evidence I alluded to previously. As Cst. Vachon never approached the vehicle to examine it closely, I prefer and accept Mr. Cuff’s evidence on this point, though ultimately, the specific positioning of the vehicle is not a material fact. Cst. Vachon noted tire tracks on the gravel shoulder leading into the ditch and driveway culvert. Cst. Vachon spoke to one ambulance attendant, then entered an ambulance. Inside was a second ambulance attendant, and another person who was seated on a bench being medically assessed. Cst. Vachon asked that other person for his identification and name. That person identified himself as Michael Pentland. Cst. Vachon later confirmed the information he received by conducting a Ministry of Transportation query at the police detachment which included a photograph. Cst. Vachon went on to arrest that same person, who also appears on the in-car video which was made a trial exhibit. Cst. Vachon recognized that individual as the accused in court, Mr. Pentland. I draw the same conclusion in comparing the two.
[42] Cst. Dokis testified that he arrived on scene at the same time as Cst. Vachon. He approached a civilian witness who was holding a german shepherd. I cannot rely on the hearsay utterances made to Cst. Dokis that the dog belonged to the driver, who was in the ambulance. Based on the admissible evidence, however, the only reasonable inference is that individual in the ambulance was indeed the driver who had the dog. This was a single vehicle motor collision. There was one human occupant of the vehicle, and one canine occupant. No person at the scene claimed ownership of the dog. No other person but the individual in the ambulance would have been rendered unavailable. Cst. Dokis testified that the civilian he spoke with, who had taken temporary responsibility for the dog, was a municipal worker. This corresponds strongly with Mr. Cuff’s evidence that he was in a work truck with a colleague traveling between two sites: an arena and a cemetery, and that he assisted with the dog. Cst. Dokis ultimately had to take steps to contact a third party come and collect the dog. The only reasonable explanation for these events is that the dog’s guardian was otherwise occupied, in the ambulance.
2.8 Impairment
[43] The element of impairment is made out where the evidence establishes, beyond a reasonable doubt, any degree of impairment by alcohol: R. v. Stellato, 1994 SCC 94. The following evidence, which I accept, bears on the issue:
Mr. Cuff described Mr. Pentland’s vehicle following closely—maybe five or ten feet away—before hearing a loud bang, then seeing in his rear-view mirror the car flying in the air. Before the accident, both vehicles were traveling about 100 km per hour. The speed limit was 80 km per hour. Mr. Cuff reasonably deduced that the vehicle had hit a driveway and was forced upward. The driveway was built across a ditch. Mr. Cuff also described a curve in the road at that point and indicated that the MVC Driver simply did not turn. The weather was clear. The road was in good, dry condition. There were no traffic signals or signs in the immediate vicinity of the accident. A strong inference is available that Mr. Pentland did not notice the curvature of the road or did not react to it.
According to Mr. Cuff, despite the car appearing very badly damaged, while waiting for emergency services to arrive, the MVC driver kept saying “let’s just flip the car over, I’m going to drive it out.” Any reasonable observer of sober mind would see the absurdity of such a suggestion, given the damage to and resting position of the vehicle. That Mr. Pentland made such a suggestion is evidence his thinking was impaired.
Mr. Pentland had an odour of alcohol on his breath in the ambulance following the collision. The odour of alcohol was also observed at the police station by Cst. Joyal. Odour speaks to the consumption of alcohol, though not directly to the level of impairment, if any.
Mr. Pentland had red, glossy eyes, and slurred speech in the ambulance. Cst. Vachon’s observations of slurred speech are corroborated by Mr. Cuff’s evidence.
Mr. Pentland had a BAC of 230 mg of alcohol in 100 mL of blood. Absent expert toxicological evidence, I can draw no direct inference from that as to the level, if any, of impairment. But it remains some evidence that, prior to the testing, Mr. Pentland consumed alcohol: R. v. Dinelle, [1986] NSJ No. 246 (C.A.); R. v. Tusiuk, [2000] O.J. No. 802 (S.C.), at para. 4. The evidence further permits no reasonable inference that Mr. Pentland consumed alcohol after driving but before testing.
[44] While I did hear evidence from Cst. Vachon with respect to Mr. Pentland stumbling after he left the ambulance, Cst. Dokis, who was also present, made no such observation. Mr. Pentland was also under the physical control of police at that time. I place no weight on this particular evidence.
[45] There may be alternate inferences, unrelated to alcohol impairment, available with respect to several of these indicia. For example, Mr. Pentland’s vehicle missing the turn in the road is something that might, in isolation, be explained by distraction. Certain observations, such as slurred speech, could perhaps be attributable, in isolation, to a head injury during the accident and airbag deployment. But, as in any criminal trial, I am not to assess the evidence in a piecemeal fashion. The criminal standard of proof beyond a reasonable doubt applies to the evidence as a whole, and not to individual items of evidence. Examining the totality of the evidence in this case, there is only one reasonable conclusion: Mr. Pentland consumed alcohol to a degree which impaired his ability to operate a motor vehicle, and which resulted in his failing to notice or failing to react to the curvature in the road, leading to the accident.
III. Conclusion
[46] The Crown has proven the essential elements of both offences beyond a reasonable doubt. Mr. Pentland is found guilty on both counts.
Released: June 4, 2025
Signed: Justice G. Jenner
[^1]: The argument was framed using the language of “as soon as practicable,” but I will employ the appropriate terms.