COURT FILE NO.: CR-11-40-00AP

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

BRADLEY SLYKHUIS

Appellant

Jason Pilon, counsel for the Crown

Jason H. Gilbert, counsel for Mr. Slykhuis

HEARD: August 3, 2012

ON APPEAL FROM THE DECISION OF THE HONOURABLE JUSTICE G. RENAUD OF THE ONTARIO COURT OF JUSTICE ON MARCH 30, 2011 AT CORNWALL, ONTARIO

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

McMUNAGLE J.

Introduction

[1] On July 5, 2009, the Appellant was charged with Impaired Driving contrary to s. 254(1)(a) of the Criminal Code of Canada, R.S.C., 1985, c. C-46, and Driving Over 80, contrary to s. 253(1)(b) of the Criminal Code:

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

[2] The trial was held on September 27, November 16, November 24, December 20, 2010 and March 29 and 30, 2011, in the Ontario Court of Justice, before the Honourable Justice G. Renaud who rendered his decision in this matter on March 30, 2011. The Appellant was acquitted of operating a motor vehicle while impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code­, but was found guilty of driving with over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code.

[3] On March 30, 2011 the Appellant was sentenced to a fine of $1,500 pursuant to s. 255(1)(a)(i) of the Criminal Code. The Appellant was also given a statutory driving prohibition of 18 months, pursuant to s. 259(1)(a) of the Criminal Code, and three years’ probation. The Appellant appeals against his conviction and sentence. The Appellant’s Notice of Appeal raised the following grounds of appeal:

1. That the Learned Trial Judge erred in finding that the statements made by the Appellant to the police prior to arrest were voluntarily made, and thereby admissible;

2. That if the statements made by the Appellant were voluntary and therefore admissible, the Learned Trial Judge erred in holding that the statements constituted an admission as to the operation of a motor vehicle;

3. That if the statements made by the Appellant were voluntary, thereby admissible, then the Learned Trial Judge erred in holding that the Certificate of Qualified Technician was admissible based on the approximate timeframe stated by the Appellant;

4. That the Learned Trial Judge erred in finding that the Crown established beyond a reasonable doubt that the Appellant had operated a motor vehicle; and

5. That the Learned Trial Judge erred in finding that the Crown had established beyond a reasonable doubt that the first breathalyzer reading was taken within two hours of the said driving.

[4] The Crown has also appealed Judge Renaud’s acquittal of the Appellant on the Impaired Driving charge contrary to s. 253(1)(a) of the Criminal Code. The Crown’s Notice of Appeal raised the following grounds:

1. That , during the course of the trial, the Crown adduced unchallenged and uncontradicted expert opinion evidence via s. 657.3 of the Criminal Code, that, given the Respondent’s blood alcohol concentration (“B.A.C.”) at the relevant time, his ability to operate a motor vehicle would be impaired by alcohol;

2. That the Learned Trial Judge committed an error in law when he failed to draw the only reasonable inference available to him based on the evidence adduced at trial with regard to the fact that the Respondent had operated a motor vehicle at a time when his ability to do so was impaired by the consumption of alcohol contrary to s. 253(1)(a) of the Criminal Code;

3. That the Learned Trial Judge committed an error in law when he acquitted the Respondent of Impaired Driving contrary to s. 253(1)(a) of the Criminal Code based on the erroneous belief that the law did not permit him to convict the Respondent of that offence based solely upon expert opinion evidence adduced by way of an expert’s report under s. 657.3 of the Criminal Code;

4. That the Learned Trial Judge committed an error in law when he acquitted the Respondent of Impaired Driving contrary to s. 253(1)(a) of the Criminal Code based on a far-fetched and frivolous doubt that does not accord with the law, reason, logic, or common sense;

5. That the Learned Trial Judge committed a factual error when he automatically concluded that the absence of symptoms or indicia of impairment was sufficient to raise a reasonable doubt that the Respondent’s ability to operate a motor vehicle was impaired by alcohol;

6. That the Learned Trial Judge committed factual error when he failed to contrast and/or reconcile the absence of symptoms/indicia of impairment with the expert’s opinion and the Supreme Court of Canada’s comments regarding individual “tolerance”;

7. That the Learned Trial Judge’s verdict of acquittal is unreasonable based on the evidence adduced at trial;

8. That the Learned Trial Judge’s verdict of acquittal is “not supported by the evidence” adduced at trial;

9. That the Learned Trial Judge’s verdict of acquittal is “palpably wrong” based on the evidence adduced at trial; and

10. That the Learned Trial Judge “could not reasonably have reached the conclusion that the Respondent was not guilty” based on the evidence adduced at trial.

[5] At the hearing of the Appeal, counsel for the Appellant and Crown counsel agreed that the main focus of the Appeal was whether the Honourable Trial Judge had erred by acquitting Mr. Slykhuis of the Impaired charge contrary to s. 253(1)(a), while convicting him of the Drive Over 80 charge contrary to s. 253(1)(b) of the Criminal Code. For the reasons that follow, both Appeals are dismissed.

Factual Background

[6] On July 5, 2009 at 8:46 p.m., Constables Robinson and Smith responded to a domestic dispute at 4651 Northfield Road, the residence of the Appellant and Ms. Slykhuis. Upon arriving at the residence, the officers separated the couple to investigate the domestic dispute. Constable Robinson then proceeded to interview Mr. Slykhuis, while Constable Smith interviewed Ms. Slykhuis.

[7] During the interview Mr. Slykhuis indicated that this was a typical fight between himself and his wife. Apparently his wife was not pleased with the fact that he had taken their children to meet his parents. Mr. Slykhuis left the house at approximately 4:00 p.m. and returned at 8:30 p.m.

[8] The officer smelled alcohol on Mr. Slykhuis’ breath. He asked Mr. Slykhuis how much he had had to drink, to which Mr. Slykhuis responded that he had consumed approximately six pints of beer.

[9] Constable Robinson and Constable Smith then reconvened and compared notes from their interviews with the respective parties. Combined with the information gathered by Constable Smith, Constable Robinson suspected that Mr. Slykhuis had alcohol in his body when he returned home from his parents’ home at 8:30 p.m. At 9:21 p.m. Constable Robinson read Mr. Slykhuis the approved screening device demand.

[10] At 9:22 p.m. the Appellant provided a suitable sample into an Approved Screening Device, which registered an ‘F’ or ‘fail’.

[11] Constable Robinson determined that he had grounds to arrest Mr. Slykhuis for care and control of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

[12] At 9:54 p.m. Mr. Slykhuis and Constable Robinson arrived at the Long Sault Detachment.

[13] At 10:10 p.m. Constable Foster, a qualified breathalyzer technician, took Mr. Slykhuis’ first breath sample.

[14] At 10:31 p.m., Constable Foster took Mr. Slykhuis’ second breath sample.

Reasons for Trial Decision

[15] The following is from the transcript of Renaud J.’s Reasons for Judgment. (Pages 148-157:

Although again I would prefer to reserve, I don’t think it’s fair to Mr. Slykhuis to put the matter over so he must yet again return, retain counsel and I won’t be in a better position writing out the decision than I am to address it now.

I’ll begin with the 253(1)(a). I find no logical difficulty with Mr. Pilon’s well-honed submission. The cases he refers to do sustain the proposition in law. I simply am of the view that when I’m confronted with the officer’s precise evidence, his physicals were good, being mindful of Graat and being mindful of his lack of experience, being mindful that there was no other suggestion anywhere by the Crown that the gentleman was impaired, Mr. Gilbert didn’t cross-examine, Browne v. Dunn doesn’t suggest there’s any duty to help the prosecution. There was no dangerous evidence, leave it alone, it’s perfectly appropriate. As a matter of strict logic, I find little difficulty with what Mr. Pilon has submitted, as a matter of practice and in light of the burden of proof, the presumption of innocence and the duty to prove the case beyond a reasonable doubt.

In effect, in these circumstances, every prosecution for impaired driving could be satisfactorily concluded for the prosecution’s perspective by filling an appropriate brief statement without calling the expert because the rules permit for that. I’m simply of the view that if the Crown law office is of the view that the law has evolved to that point, then it shall, of course, appeal my decision not to make a finding of guilt because being mindful of my burden pursuant to Justice Cory’s admonition in W.(D.), I am left in a state of reasonable doubt that Mr. Slykhuis operated a motor vehicle while impaired, notwithstanding what Mr. Pilon has properly qualified as uncontradicted information by an expert because the expert has not been show to have reviewed the entire state of the record. In effect, the expert’s report suggests that that would be superfluous in that it wouldn’t matter.

Reference was made by Mr. Pilon to ... Ostrowski ... [wherein] Mr. Justice Stewart ... makes comments about the logic of the law most flying things being an insect, the thing that the officers described is a flying thing therefore it should be an insect. I appreciate that that does an injustice to Mr. Pilon’s well-honed submission but it’s simply that, in my view and in accordance with the logic of the law, which is experience, I am not prepared to take the next step and indicate that in the absence of an indication by the expert that having looked at the information before the court. In effect, I’m not prepared to take the step that that evidence is sufficient in the presence of three officers, none of whom said anything untoward about the gentleman’s ability to operate a motor vehicle that I can safely return a finding of guilty.

If the law has evolved to that extent then obviously the Superior Court will note my error and the law will evolve accordingly after both counsel have had a chance to be heard fully.

In these circumstances, in light of what the officers have said, being mindful of the reference to Seo in particular, that it is difficult to be able to detect impairment by the consumption of alcohol, I am left in a state of reasonable doubt.

I go on now to the question of the reasons why I have no ability to have any confidence in any element of the evidence of what the witnesses said. And I’ll start with the most banal statement.

We live out in the middle of nowhere. In some cases, of course, no matter how difficult I may find the testimony to be, I can of course give some weight to some secondary matters. I’m simply unable to know that that was a fair and full account of the reality because of the fact that the lady testified, the background of a prism of significantly overwhelming emotional upheaval. In no sense am I saying that she wasn’t true to her oath. In no sense am I saying that at any point she intentionally or sought out to mislead or to confuse everyone. It is simply that, in effect, it is as if we had two individuals, a group of us on one side of the room and an individual on the other and a group of us are speaking the same language understanding the same basic rules and someone else, by reason of the emotional difficulties that confronted her in this case, simply was speaking a different language following completely different rules.

The best example I can give is the explanation for not having been in court the first time. The belief that her father-in-law would be present, she would not suffer to be anywhere near his presence. Irrespective of the fact that she faced imprisonment, criminal charges and any other number of difficulties, she simply followed what she believed in her heart to be the appropriate step.

When she was providing information to the police through the 911 call, I am not satisfied that, given the emotional upheaval she encountered, she was able to ... have an appropriate prism to be able to take in information, make sense of that information and verbalize information. When she spoke yesterday about how the post-partum effects or whenever it is she claims, and I’m not here to do the trial of something that’s not before me, left her in such a state that there have been tremendous difficulties.

In effect, I am simply unable to have any confidence that any element of her evidence she perceived accurately was able to process it fairly and was able to recall it. Even what she said to the police as captured on the video, I’m not satisfied at all that I can rely on any element of it. In the circumstances, she wished to communicate to the police something and that message had to be communicated, the rest was secondary.

An additional element is simply the importance of drunk, impaired, intoxicated, things of that nature. I’m not satisfied that she appreciated how little alcohol brings about a real danger to the lives of others, in particular, the lives of her children. She simply was not able to focus on what she was asked because, in effect, this entire trial was obverting the necessary protection or decision she had to make, protection of her children, decision she had to make in their best interest, and I’m sorry that I wasn’t at all capable of assigning any weight to what she said. It’s no different and no more serious than an identification witness who honestly and correctly believes that they have seen, perceived and recalled events accurately. From her perspective everything she said is the gospel truth. From my perspective, regrettably and with the greatest respect for someone in that situation, I’m not at all satisfied that she perceived, retained and was able to recall the events because what Mr. Slykhuis had done that day is so grave in her mind that she was unable to draw back from it and is still unable to draw back from it.

I have information that I do accept from Officer Robinson, Officer Smith and Officer Foster and in particular, I’ll focus on the statement given by Mr. Slykhuis which I found to be admissible in law, voluntary in law and although I still have tremendous concerns about the quality of what was noted because I continue to insist on the fact that there is no point speaking to individuals if it’s not recorded. There is no point speaking to individuals unless the officers are provided with the most basic recording documents or instruments that are available readily at every store and it strikes me as odd that any time there is some kind of emergency, everyone under 25 seems to have a phone they can take out and record word for word and everything else but the people in authority have not been provided with the resources by those of course who hold the purse strings to give them an equal chance to do exactly the same thing. I have tremendous difficulties with respect to the officer’s notes as to the number, the sequence and the record of what was consumed.

However, I am not in any position to, at the end of the day, have any concerns about the accuracy of the note that he returned at approximately eight thirty. I don’t know if he’s quoting Mr. Slykhuis’ saying, “I got back at approximately eight thirty” or whenever it is he understood, it can be safely truncated to eight thirty. It may be that Mr. Slykhuis spoke of about eight thirty, shortly before, all these words, I don’t know and I agree with Mr. Gilbert, the evidence should be better. But in the circumstances, I am absolutely convinced and beyond a reasonable doubt that the evidence provided by Mr. Slykhuis to Officer Robinson at a time when Officer Robinson, as Mr. Pilon’s pointed accurately, was being coached and there was oversight, would not have done anything to round it out more than a matter of minutes. Certainly not anything more than I’d say five minutes. In the circumstances, I’m satisfied that there is admissible evidence that the time of operation was at least within five minutes of 8:30 p.m. on the day in question.

With respect to the question of whether there was a vehicle, I can’t take judicial notice of the address being in a rural detachment but I can draw appropriate inferences in my mind from what little information I have. Officer Robinson said something that whether it was recorded or not struck me and probably struck him. We’ve got an individual whose boys have never met the grandfather. That’s amazing. In the circumstances of that comment which he attributes to Mr. Slykhuis, in the circumstances of the information we found at page 22 of the transcript, he said she wasn’t happy that he had taken the children to their grandparents which he indicated was his parents. He left and returned. In light of that information, even though I can assign no weight to what the lady has said, I’m absolutely convinced that when we juxtapose the comment of Officer Robinson, it’s the first time they met their grandfather to the comment about why the lady was upset, it makes absolutely no sense for me to conclude, to believe or even to speculate about the possibility that the two homes were close one to the other.

In those circumstances, having regard to, as Mr. Pilon points out properly, common sense inferences, experience of life, it’s obvious that the travel, the children, whether we’re speaking of two or three, it’s obvious from the evidence that there are many children but the evidence that I can accept and I know I’m being unduly punctilious by saying I don’t accept anything the lady has said because in the circumstances, although I’ve got the family law documents and I know how many children there are, in the circumstances, the officer recorded children in the plural. I don’t have a breakdown. It could mean as few as two children. I refuse to accept that someone would have travelled in anything but a motor vehicle to do so.

Mr. Gilbert’s point remains a strong one. Well maybe he went out in the car, was brought back because he consumed, we’re speculating as to whether his car didn’t break down and I agree with any number of things. But the record is what the record is. I just made reference a moment ago to Noble, ... the Supreme Court decision at paragraph 65. There’s no onus and I’m not allowed to follow what used to be the typical Crown submission, “Well, in light of certain evidence it cries out for a conclusion.” There’s no such crying out conclusion, a belief that’s sustained by the Supreme Court of Canada.

In this case, being mindful that there’s no onus whatsoever on Mr. Slykhuis that the Crown has to demonstrate guilt beyond a reasonable doubt and that no matter how much the courts in Bershaw and other cases stress the importance ... [of] protecting the community, guilt must be demonstrated beyond a reasonable doubt.

In these circumstances, I am satisfied that the only logical conclusion that’s open to me is that Mr. Slykhuis was in fact travelling in a motor vehicle, there were motor vehicles not far from the house. It makes sense to believe that they’re attached to the family living there and in these circumstances, when one says he had taken the children to the grandparents, I’m of the view that it ... [leads] me only to the inescapable conclusion that Mr. Slykhuis was operating a motor vehicle, he ceased to operate his motor vehicle more or less within five minutes of eight thirty that evening.

In those circumstances, assigning no weight whatsoever to the testimony of Mrs. Slykhuis, therefore assigning no weight to the 911 tape, we have a situation where the presumption is applicable, the individual would have consumed alcohol in excess of the legal limit and although, based on the officer’s evidence, Mr. Slykhuis would have consumed some further alcohol, it doesn’t affect the legal conclusion I reached. In the circumstances, in the absence of any evidence and being mindful of the Carter Situation and the absence of competing evidence there is no doubt as to the fact that he breached s. 253(b) on the night in question.

[16] The following was taken from the transcript of Renaud J.’s Reason for Sentence. (Pages 171-177:

... (continues verbatim as provided above through paragraph [54])

[54] In the result, both appeals are dismissed and the original conviction and sentence are confirmed.

The Honourable Justice John A. McMunagle

Released: January 11, 2013

COURT FILE NO.: CR-11-40-00AP

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

BRADLEY SLYKHUIS

Appellant

REASONS FOR DECISION

ON SUMMARY CONVICTION APPEAL

McMunagle J.

Released: January 11, 2013