ONTARIO COURT OF JUSTICE
DATE: 2025-02-10
COURT FILE No.: Thunder Bay 42100454
BETWEEN:
His Majesty the King
— AND —
Jessica Werpny
Before Justice C.M. Brochu
Heard on January 14 and 15, 2025
Reasons delivered on February 10, 2025
Lillian Taylor — Counsel for the Crown
Richard Garrett — Counsel for the defendant Jessica Werpny
OVERVIEW
[1] The accused is charged with the offences of:
(1) operating a conveyance while impaired by alcohol and/or drugs, contrary to section 320.14(1)(a) of the Criminal Code; and
(2) within two hours of ceasing to operate a conveyance, having a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood, contrary to section 320.14(1)(b) of the Criminal Code.
[2] This matter results from an incident that occurred on August 6, 2022, in the Township of O’Connor, District of Thunder Bay.
[3] The trial was held over the course of two days on January 14 and 15, 2025.
[4] The accused has conceded the following:
- Date
- Jurisdiction
- Identity
- The authenticity of documents and videos, and
- The Certificate of a Qualified Technician.
[5] The main issue is whether the Crown can prove beyond a reasonable doubt operation care and control of the vehicle, and, as it relates to the offence of over 80, whether the accused can benefit from the exception provided in section 320.14(5) of the Criminal Code.
SUMMARY OF THE RELEVANT EVIDENCE
[6] The only Crown witness was Cst Price of the Ontario Provincial Police (“OPP”). The defence offered the evidence of Dr. Trevor Beaudoin, an expert in forensic toxicology, and an employee at a local car dealership, Giuseppe Palodino. The accused also testified.
Evidence of Constable Patrick Price
[7] Cst Price has been a police officer with the OPP for 15 years. He has held several positions during his tenure. On the day of this incident, he was a frontline officer. He is also a qualified breath technician.
[8] On the night in question, he was on general patrol. He received a call for service at approximately 10:05 p.m. that a female was stuck on the side of the road near 10 Smith Road (hereinafter “Smith Road”) in the township of O’Connor. She required police assistance. He attended the location and located the motor vehicle at 10:19 p.m. parked on an old entry way on Smith Road approximately 20 meters from the roadway.
[9] The evening of August 6, 2022, was described as warm, approximately 25 degrees Celsius. It was dark outside.
[10] The motor vehicle in question was a grey 2015 Chevrolet Cruise with an Ontario marker (the “motor vehicle”).
[11] The area where the motor vehicle was located was described by Cst Price as an old gravel drive (hereinafter the “side road”), overgrown with grass in some areas. The motor vehicle was parked in the middle of the side road. There was approximately one meter on each side of the motor vehicle, which allowed Cst Price to walk around it.
[12] The road ahead of where the motor vehicle was stopped was even more overgrown. It was flat and not well travelled. In cross-examination, Cst Price maintained that the grade was flat, clarifying that he meant from point of entry to where you can see looking forward. However, when looking at the grade or surface from side to side or shoulder to shoulder of the side road, there was a hump in the middle of the side road and ruts on either side.
[13] It was Cst Price’s evidence that the motor vehicle’s engine was running when he arrived. He could hear it and when he attended at the motor vehicle the dash lights were on.
[14] When he arrived, he approached the driver’s side of the motor vehicle from the rear. The accused was the lone occupant in the driver’s seat of the motor vehicle. He attended at the driver’s window to speak with her.
[15] He observed that the accused was upset; she was crying, and she had dry lips, bloodshot and watery eyes. There was a smell of alcohol coming from her breath. She seemed confused and did not know where she was.
[16] Cst Price made the following observations: there were two sealed bottles of Nyquil on the front passenger seat, four cans of Corona beer on the passenger back seat, behind the driver’s seat, empty beer cans on the floor, and five empty beer cans in a plastic bag.
[17] He proceeded to go around the motor vehicle to look at its exterior. He did not notice any damage to the rear or driver side of the motor vehicle. He noted a crack in the front grill of the motor vehicle. He also noted a shoe behind the passenger front tire. He did not notice anything that would indicate the motor vehicle was caught on something. He stated he looked under the motor vehicle with his flashlight.
[18] He then asked the accused if she could try to reverse the motor vehicle. Cst Price observed the accused trying to reverse by putting her foot on the gas. At the same time, he noted by looking at the dash of the motor vehicle that it was still on park and the rpm’s indicator on the dashboard was moving demonstrating to him that the engine was revving. His observations led him to conclude that the accused had not shifted the gear to reverse and was attempting to go backwards while in park.
[19] Under cross-examination, Cst Price agreed that when he attended the scene the vehicle was already on the side road. He did not observe the accused driving the motor vehicle at any time prior to it being on the side road. Cst Price indicated that when he arrived on scene, what caught his attention, and was observed by him from the corner of his eye, was the motor vehicle moving forward and rolling back. He remembered the brake lights were on. He could not specify the distance it would have moved. He further stated that he made a late entry in his notes regarding this observation, indicating in his notes that it rolled forward one foot, stopped and reversed slowly one foot. This note was made approximately one and a half days after the fact.
[20] Cst Price requested that the accused provide her driver’s licence. He observed that she had a difficult time removing it from her wallet. Cst Price also stated that he could not recall if her licence was in a sleeve in her wallet, which would have made it difficult to pull out.
[21] Subsequently, he asked the accused to exit the motor vehicle, as it was his intention to make an approved screening device (“ASD”) demand. He did so. They proceeded to where he had parked his cruiser to perform the ASD, as the device was in his cruiser.
[22] When the accused exited the motor vehicle and walked to the police cruiser, Cst Price observed that she was weaving as she walked. She was unsteady on her feet and her movements were slow.
[23] Cst Price was cross-examined on the impact the road surface may have had on the accused’s ability to walk steadily. He stated that it was more the swaying as she was standing. It would have been consistent with an individual under the influence of alcohol.
[24] The ASD demand was read at 10:33 p.m. from his police issued card. The accused responded that she understood. At 10:36 p.m. the accused provided a breath sample. The ASD registered a “fail”. At 10:38 p.m. the accused was placed under arrest for impaired operation. She was searched incident to arrest. At 10:40 p.m. she was read the caution, to which she indicated she understood. At 10:42 p.m. she was read rights to counsel. She said she understood. At 10:45 p.m. she was read the breath demand. She indicated that she did not understand. Cst Price testified that he believed he tried to explain it to her. The accused further indicated that she did not understand and stated that he was kidnapping her. He stated that he was having difficulty understand her and that she would not respond.
[25] In cross-examination, Cst Price was questioned on his observations or concerns as it related to the accused’s mental health on the night in question. He stated that at first, he did have some concerns. However, the signs he observed at the scene and thereafter were also consistent with someone under the influence of alcohol. He agreed that after the accused was place under arrest and at the police station, at times the accused was belligerent and raised her voice.
[26] Cst Price requested a tow truck. At 11:05 p.m. he transported the accused to the OPP detachment arriving at 11:24 p.m.
[27] On the evening in question, Cst Price was the only qualified breath technician on duty. He began setting up the equipment at 11:27 p.m.
[28] The proper functioning of the breathalyzer and the readings were not in issue at trial. The Crown tendered as an exhibit the Intoxilyzer Test Cards, the Certificate of Qualified Technician, and the Certificate of Analyst.
[29] The readings were as follows: at 23:54 - 148 mg of alcohol in 100 ml of blood, at 00:22 – 137 mg of alcohol in 100 ml of blood, truncated to 140 mg and 130 mg respectively.
[30] The accused was subsequently charged with impaired operation and over 80 mg of alcohol in 100 ml of blood. She was released on an appearance notice at approximately 1:35 a.m.
Evidence of the Accused
[31] The accused testified at her trial. She is 30 years of age. She has worked as a personal support worker for the last 8 years.
[32] She testified that at the time of incident she was struggling with her mental health. She had previously been diagnosed with depression, schizophrenia, and anxiety. She described her symptoms as going into a psychosis, resulting in brain fog, accompanied by irrational thoughts and a racing heart.
[33] On the day in question at around 4:00 p.m. she left her home located in the City of Thunder Bay with T1s and Nyquil. She was looking around to find a place to harm herself. Initially, she was driving around on the country roads, and in the area of Pike Lake, which she explained is off of Onion Lake Road. She eventually ended up in the Township of O’Connor.
[34] She found a place to stop and fell asleep for a few hours. When she woke up, it was getting dark. That is when she ended up driving into the area where she got stuck. She testified that it looked like a secluded spot. She was not sure on what she got hung up. It was her evidence that her car “bottomed out” in the middle of the road.
[35] She stated having tried to put the vehicle in drive and to reverse it in an attempt to move it, but all that would happen was the tires would spin.
[36] The accused believed that she got stuck on the side road between 8:30 p.m. and 9:00 p.m. She stated remembering the time because she was panicking and looking to see what time it was. She was alone in the bush; she had no service on her cell phone, and it was getting dark.
[37] It was her evidence that after sitting there for a while, she looked around in the back seat of her car and noticed that her brother had left some beer. Her heart was racing. She was in a panic and decided to drink some beers. She stated that it would have been around 9:30 p.m. In her distress, she drank four cans of beer in about 15-20 minutes to calm down.
[38] At one point she realized that she could make an emergency call from her cell phone even with no service. She then called 911 in or around 10:00 p.m.
[39] When the police showed up, the officer came to the driver’s side window. She was not doing well. She was crying. He asked her to try to reverse the motor vehicle. She did. It was her evidence that she did not leave it in park while doing so. It was her recollection that the tires were spinning, and she put the motor vehicle back in park.
[40] Subsequently, she was asked by the officer to exit her vehicle. They walked from there to Smith Road where his cruiser was located. An ASD demand was made. She provided a sample. She was then arrested.
[41] It was the accused’s evidence that once she was arrested, she was under a lot of stress. It is her belief that she was talking nonsense and could not remember what she had said.
[42] She further testified that she was in a state of panic at the police station. She remembered that they made her provide more breath samples, but admitted to not remembering much of what happened there. She recalled waiting for her mother and going home with her once released.
[43] The accused indicated that the following day, she went back to the area where she got stuck and photos were taken by a friend. Some of these photos were tendered as exhibits at trial. She described that the large rut seen in the photograph was where her tire was stuck. There was also a piece of plastic depicted, which came from her bumper.
[44] She testified that her intention in calling the police that night was to get her vehicle unstuck and towed. She stated that she would then have called her mother to come and pick her up.
[45] In cross-examination, she was asked whether it had crossed her mind that if she called the police, they might request that she provide a breath sample. She indicated that she had. It was her evidence that she did not think much of it as she was drinking the beers.
[46] The accused was also cross-examined on where she was located in the vehicle and whether the vehicle was running. She confirmed that she was in the driver’s seat of the motor vehicle and that it was running. She also acknowledged that it was in August, that it was warm outside, and that she did not need to keep it running for the heat.
[47] She was specifically asked if prior to the officer arriving and after having drunk the beers whether she tried to move the motor vehicle. The accused stated that she did and in re-examination specified that she did so by trying to go forward and backward.
[48] The vehicle was impounded for seven days. It was then towed directly to Dominion Motors, a local dealership and garage. It was her evidence that she never drove the vehicle again. It was her belief that it was undrivable due to the damage. She eventually sold it.
Evidence of Dr. Trevor Beaudoin
[49] Dr. Trevor Beaudoin is a Forensic Scientist. He is employed as such in the toxicology section of the Centre of Forensic Sciences in Sault Ste. Marie. He provided expert evidence. His qualifications as an expert were not challenged by the Crown.
[50] Dr. Beaudoin had been tasked to provide an opinion in accordance with a given scenario to determine the accused’s projected blood alcohol concentration (“BAC”) at approximately 9:00 p.m.
[51] The scenario provided was of a female weighing approximately 135 pounds involved in an incident at approximately 9:00 p.m. This female would have consumed four cans of Corona beer between approximately 9:30 p.m. and 10:19 p.m. (the latter time when the police arrived on scene). The Intoxilyzer results of 148 and 137 milligrams of alcohol in 100 millilitres of blood were obtained at approximately 11:54 p.m. and 12:22 a.m., respectively.
[52] Based on the above scenario, it was Dr. Beaudoin’s evidence that the projected BAC at approximately 9:00 p.m. would have been between 0 to 35 milligrams of alcohol in 100 millilitres of blood. In cross-examination Dr. Beaudoin confirmed that his opinion would not change if the four cans of beer were consumed at 9:30 p.m. within 15-20 minutes.
Evidence of Giuseppe Palodino
[53] Mr. Palodino is the operational manager at Dominion Motors, a local dealership and garage in Thunder Bay. He confirmed that he was employed at Dominion Motors in August of 2022 and that he was the individual who inspected the accused’s Chevrolet Cruise.
[54] It was his evidence that there was some collision damage to the motor vehicle. He specified that there was impact damage, broken parts, the bumper cover was falling off and a light was missing. He was unaware of how the damage occurred.
[55] He further indicated that there was some undercarriage damage, such as broken harness wires, a broken grill shudder and that the ambient sensor was hanging down. Mr. Palodino explained that the ambient sensor conveys to the computer the outside temperature. This would affect the proper running of the engine. The radiator was also damaged, as was the lower radiator mount. However, Mr. Palodino indicated that this would not affect the proper operation of the motor vehicle.
[56] It was his opinion that the damage observed under the motor vehicle could have been caused by the vehicle “bottoming out”.
[57] It should however be noted that Mr. Palodino was not tendered as an expert. He also had no knowledge as to how the “collision damage”, as he put it, occurred.
[58] He confirmed that the motor vehicle was brought to Dominion Motors by a tow truck. It was pushed into the mechanical shop for inspection. When they ran the diagnostic scanner, the code indicated that the motor vehicle was on “reduced power mode” or “limp mode”. He explained that this means that the motor vehicle would run but sometimes at a maximum of 10 km per hour. This issue would be caused by the damage to the grill shudder and the ambient temperature sensor.
[59] It was his evidence that they did not make any repairs to the vehicle. He did provide two estimates to the accused. The first estimate provided for repairs that would get the motor vehicle to a driveable state and the second estimate was to repair it completely.
[60] It should be noted that Mr. Palodino was never asked whether the motor vehicle could still be driven in the state that it was. He indicated that the first estimate provided would render the vehicle driveable, but there would still be a check engine light on. Counsel for the accused then asked if the repairs were not done whether it would be in the same condition that it was brought in. Mr. Palodino confirmed that it would. However, at no time was it specifically indicated that the vehicle could not be driven.
POSITION OF THE PARTIES
[61] As it relates to the over 80 charge, the defence raised the exception provided in section 320.14(5) of the Criminal Code.
[62] It is submitted that the accused ceased to operate the motor vehicle once she became stuck on the side road. As a result, her consumption of alcohol occurred after ceasing to operate the motor vehicle. At the time of operation her BAC would have been between 0 to 35 mg of alcohol in 100 ml.
[63] It is further advanced that having consumed alcohol after ceasing to operate the motor vehicle, the accused could not have been impaired at the time of operating the motor vehicle.
[64] The accused also argued that in the circumstances of this case the Crown cannot rely on the presumption provided in section 320.35 of the Criminal Code. It is advanced that the motor vehicle was immovable and/or inoperable eliminating any risk of it being put in motion.
[65] The Crown submitted that the presumption pursuant to section 320.35 of the Criminal Code is applicable. The accused was at all material times, by her own evidence, in care of control of the motor vehicle, therefore operating the conveyance.
[66] The Crown argued that the accused failed to rebut the presumption.
[67] Furthermore, the Crown advanced that the defence under section 320.14(5) has no air of reality and is therefore of no assistance to the defence.
[68] The Crown stated that it had successfully established all elements of both driving offences beyond a reasonable doubt.
THE LAW, ANALYSIS AND DISCUSSION
[69] This matter is quite different on its facts than other matters that have considered the exception provided under section 320.14(5) of the Criminal Code.
[70] In this regard, most matters that have considered the exception were dealing with scenarios wherein the individual had an accident, or something happened resulting in the motor vehicle becoming immovable or inoperable. The motor vehicle is then left, or at least, its operator is not in the driver’s seat of the vehicle. Again, in most cases, the individual goes home or somewhere else and consumes alcohol.
[71] In this matter, the accused, at all material times, remained seated in the driver’s seat of the motor vehicle. At no point in time does she abandon the vehicle. In fact, she consumed the four cans of Corona beers while seated in the driver’s seat of the motor vehicle.
[72] I will first start by addressing the issue of whether the presumption is applicable, as, in my view, this analysis is required in the circumstances of this case to address the exception envisioned by section 320.14(5) as well.
Presumption
[73] The Crown can often rely on the presumption set out at section 320.35 of the Criminal Code. That section reads as follows:
320.35 In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.
[74] I find that the accused occupied the driver’s seat of the motor vehicle when Cst Price arrived. As a result, the presumption applies and the accused is presumed to have the care and control of the motor vehicle, unless she can rebut that presumption.
[75] The legal analysis involves two steps.
[76] First the court must determine whether the accused has demonstrated on a balance of probabilities, that when the accused entered the vehicle, it was not for the purpose of setting the vehicle in motion.
[77] If the accused has failed to do so, the presumption applies, and the Crown has established care and control. The Court would then move on to the analysis as it relates to impairment.
[78] The second step is only engaged if the accused is successful in rebutting the presumption. I must then decide whether the Crown has proved beyond a reasonable doubt that the accused was operating the vehicle by virtue of being in care or control of the vehicle. It is at this stage that the risk analysis as outlined in Smits and Boudreault is engaged.
Has the accused rebutted the presumption
[79] I found the accused to be a credible witness. Her reliability is questionable on some of the details. This in my view is due to the mental state she found herself on the night in question. She candidly admitted that she does not have a clear memory, especially of what occurred once she was arrested and brought to the station.
[80] I accept her evidence that she turned into the side road and got stuck. She did not know where she was. She was in a panicked state and had no cell phone service. She attempted to get unstuck but was unsuccessful. In her panic and to try and calm herself she drank four cans of Corona in a very short period of time. She eventually called 911 to get some assistance.
[81] I find that she continued to try to get her vehicle freed, even after having consumed the alcohol and calling 911.
[82] The defence relies on the inoperability of the vehicle in arguing that the presumption has been rebutted. It is argued that she would not have been able to go anywhere with the vehicle. It is also advanced that she had no plan to drive the vehicle. Her plan was to get the vehicle unstuck, get a tow truck and call her mother or someone else if her mother was not available to come and get her.
[83] The issue in this matter is that the accused’s stated intention when she entered or remained in the vehicle was to try to get it out of where it was. That, in my view, is an intention to operate the motor vehicle. Even if it was only to get it towed, it remains operating a motor vehicle.
[84] The Crown relied on the decision in R. v. Maniatis, 2024 ONSC 1682, a summary conviction matter, wherein Edwards RSJ addressed the following issue: whether the presumption can be rebutted by evidence that the vehicle is inoperable and thus no risk to public safety.
[85] The above issue is in essence the argument of defence counsel. The accused argued that even though she was behind the wheel of the motor vehicle, had consumed alcohol, had tried to get it moving by going forward and backward, she remained in that position when the police arrived, but none of that mattered because she could not go anywhere as the motor vehicle was inoperable.
[86] In Maniatis, when the witnesses had approached the vehicle, the four-way flashing lights were engaged, the vehicle was not running, and Mr. Maniatis was in the driver’s seat. At trial, Mr. Maniatis did not testify. He sought to establish that the vehicle was inoperable due to the damage it had suffered in the accident. In acquitting Mr. Maniatis, the trial judge relied on the expert evidence which established that the vehicle was inoperable and could not be moved using its own power.
[87] The summary conviction appeal court at para 30, in reference to the definition of conveyance in the Criminal Code, found that “there is nothing in the definition of conveyance suggesting that a motor vehicle which is inoperable ceases to fall within the definition of conveyance”. Edwards J. at para 47 concluded that: “Once Mr. Maniatis was in the seat of his vehicle the onus shifted to him to establish that he had no intention to drive. The evidence that the vehicle was inoperable can not support the conclusion.”
[88] The defence in this case is making that same argument. Not only am I bound by the decision in Maniatis, but I agree with it. The issue of the inoperability of a vehicle and risk of it being put in motion is only addressed at the second stage, once the accused has rebutted the presumption.
[89] Having dealt with many cases wherein the presumption is at play, I note that the majority of them deal with scenarios in which the accused testified and provided details as to why they were in the driver’s seat asleep when police attended. They also provided evidence that they did not intend on setting the vehicle in motion.
[90] The circumstance of this matter is different in that the accused was found in the driver’s seat, awake and by her own evidence actively attempting to put the vehicle in motion. She was trying to get it unstuck. In order to rebut the presumption, the accused needs to satisfy this court that she did not occupy the driver’s seat for the purpose of putting it in motion.
[91] I find that the accused has failed to rebut the presumption. As a result, the presumption applies and there is no requirement to address the risk analysis.
[92] Despite this finding, it does not end here. I must still consider the exception under section 320.14(5) as it relates to the over 80 charge and whether the Crown has proven impairment beyond a reasonable doubt as it relates to the impaired operation charge.
The Exception under section 320.14(5) – Over 80
[93] As it relates to the offence of operating a motor vehicle with a BAC of over 80, the accused seeks to rely on the exception provided in section 320.14(5).
[94] Section 320.14(5) of the Criminal Code provides as follows:
No person commits an offence under 320.14(1)(b) (the over 80 offence):
(a) if they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg. of alcohol in 100 ml. of blood.
[95] In R. v. Debold, 2024 OJ No 2033 (OSCJ) at para. 121, Shamai J. adopted the law as stated by Justice Pringle in R. v. Rodriguez-Fonseca, 2022 OJ No 5457 (OCJ), whether there is an air of reality to the evidence of the accused, and whether the Crown has disproved the elements of section 320.14(5) beyond a reasonable doubt.
[96] In Debold, the court found that the first and third element of the defence was easily met. It was the second element that was most contentious. The primary issue as outlined by the Court was whether there was an air of reality to the assertions of the defence as it related to the reasonable expectations of having to provide a breath sample. The Court found that there was an air of reality, and it therefore followed that the Crown had not disproved that element of section 320.14(5) beyond a reasonable doubt.
[97] I understand from the above that the exception only applies when all three elements (a)(b) and (c) have been established, in other words, the defence has shown an air of reality to all three elements. Consequently, failing to establish an air of reality on one of the elements is fatal to invoking the statutory defence established by section 320.14(5) of the Criminal Code.
[98] On the other hand, should the defence have satisfied the court that there is an air of reality on all elements, the burden remains on the Crown to disprove the defence beyond a reasonable doubt.
[99] The above interpretation is also in line with the Ontario Superior Court of Justice decision in R. v. Bell, 2023 OJ No 2193, wherein the court indicated that for an accused to avail himself of the statutory exception, he is required to show on the evidence that there was an air of reality to the application of that defence. The Crown is not required to negative or disprove the elements of s. 320.14(5) in the absence of such a showing.
[100] This matter is quite different than the other matters that have considered this exception/defence. In most cases the individuals involved in an accident left the scene and asserted having drank alcohol in their home or elsewhere, often to calm their nerves. The distinguishing factor in this case is that the accused never left her motor vehicle. Her evidence is that she remained at all times seated in the driver’s seat of the vehicle, even when she consumed the four beers.
[101] The Crown concedes that the accused has met the air of reality test on the third element. This was established by the expert evidence, which indicated that the accused’s BAC would have been between 0 to 35 mg of alcohol in 100 ml of blood in or around the time that the accused became stuck at approximately 9:00 p.m.
[102] The main issue in dispute is the meaning of “ceasing to operate the conveyance”.
[103] The Crown submitted that the accused never ceased to operate the conveyance.
[104] The Crown relied on the definition of operate which includes care and control of the motor vehicle.
[105] On the other hand, the Defence submitted that the accused ceased to operate the motor vehicle when she got stuck and the vehicle became immovable or inoperable.
[106] I find that the accused never ceased to operate the motor vehicle.
[107] On her own evidence, the accused indicated that she tried to move the vehicle both before and after having consumed alcohol. She also clearly indicated that she had considered the fact that she had called 911 and that she may be required to provide a breath sample.
[108] I find that there is no air of reality to the first and second prongs of the defence. Consequently, the statutory defence cannot apply.
Summary of Findings – over 80
[109] The evidence is clear and uncontroverted that the accused consumed four beers while seated in the driver’s seat of her motor vehicle.
[110] Furthermore, the Intoxilyzer results of 148 and 137 milligrams of alcohol in 100 millilitres of blood obtained at approximately 11:54 p.m. and 12:22 a.m., respectively, are not being challenged.
[111] I have found that the presumption under section 320.35 of the Criminal Code applies, and that the accused has failed to rebut this presumption.
[112] I have also found that the accused cannot avail herself of the exception provided for in section 320.14(5) of the Criminal Code.
[113] Consequently, the Crown has established beyond a reasonable doubt that the accused was operating a motor vehicle while her blood alcohol level was in excess of 80 milligrams of alcohol in 100 millilitres of blood.
Impaired operation – section 320.14(1)(a)
[114] I now turn to the charge of impaired operation.
[115] The test for impaired driving has been established some time ago in R. v. Stellato, [1994] 2 S.C.R. 478, where the Court adopted the test established by the Court of Appeal for Ontario in this case (1993 ONCA 3375). Simply put: “if the evidence is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.”
[116] I heard the testimony of Dr. Beaudoin relating to the behavioural impact of alcohol consumption and the difference between impairment and intoxication.
[117] In this case, the observed sign of impairment by Cst Price, other than the smell of alcohol, could be associated with impairment as well as related to the state of panic that the accused found herself in. It was clear from the evidence that the accused was upset and crying. Her watery and bloodshot eyes could be a result of her crying.
[118] Cst Price also indicated that the accused was swaying when walking and standing. I cannot ignore the terrain on which the accused was walking. The pictures entered as exhibits depict a rough and uneven terrain. Any difficulty in walking could be the product of those conditions.
[119] I cannot use the failed ASD or the Intoxilyzer results in order to make a finding relating to impairment.
[120] I am not sure that the indicia observed as being signs of impairment were a result of alcohol impairing the accused’s ability to operate a conveyance. They could very well have been caused by the mental state she found herself in.
[121] In the circumstances of this case, I find that the Crown has not proven the count of impaired driving beyond a reasonable doubt.
CONCLUSION
[122] In sum, I find the accused guilty of the offence of operation of a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol per 100 ml of blood.
[123] The accused will be found not guilty of the offence of impaired operation.
Released: February 10, 2025
Signed: Justice C.M. Brochu