R. v. Carnochan, 2015 ONSC 1689

COURT FILE NO. 13482/13AP

DATE: 20150313

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Thomas M. Carnochan

BEFORE: Bale J.

COUNSEL: Mitchell Flagg, for the Crown

Nicholas Xynnis, for the Appellant

HEARD: August 6, 2014

ENDORSEMENT

[1] The accused was charged with mischief, operating a motor vehicle while impaired, and failure to comply with a demand to provide samples of breath in order to determine the concentration of alcohol in his blood. Following a trial in the Ontario Court of Justice, he was convicted of the first two offences, but acquitted of the third.

[2] On this appeal from his conviction for impaired operation of a motor vehicle, the appellant argues:

• that much of the evidence consistent with impairment was equally consistent with non-impairment;

• that there was an abundance of evidence of him behaving and functioning in a manner consistent with non-impairment;

• that the trial judge’s findings that there was a smell of alcohol on his breath, and that his eyes were glassy, support an inference that he had been drinking, but not an inference that he was impaired;

• that his slight imbalance and deliberate movements, when considered together with what he was able to do proficiently and without difficulty, while in police custody, leave little upon which the court could reasonably conclude that he was impaired by alcohol; and

• that there was therefore insufficient evidence upon which to conclude, beyond a reasonable doubt, that he was impaired at the time of the offence charged.

[3] In oral reasons for judgment, the trial judge, following a careful review of all of the evidence, including both the evidence suggesting impairment, and the evidence of normal functioning, found that not only was it apparent that the accused was impaired, but that it was obvious. That evidence included:

• that after the arresting office began following the accused, his vehicle swayed slightly toward the centre line, with both left tires touching the centre line;

• that the accused was driving at a rate of speed below the posted limit;

• that there was a delay of two or three seconds after the arresting officer activated his emergency lights, before the accused pulled over to the side of the road;

• that the accused exhibited glassy eyes and a glazed look;

• that the accused’s speech was mumbled;

• that the accused delayed in getting out of the car, when asked to do so;

• that when the accused got out of the car, he was slightly unbalanced, but not in an exaggerated way;

• that he walked in a concentrated and deliberate fashion;

• that the arresting officer smelled a stale, faint odour of alcohol on the accused’s breath;

• that when asked where he was coming from, the accused gave the wrong answer; and

• that at the police station, the accused’s speech was badly slurred, and on occasion, unintelligible.

[4] The defence position amounts to an argument that none of these observations, taken alone, are sufficient to support a finding of impairment beyond a reasonable doubt, that evidence which is consistent with both impairment, and non-impairment, should not have been considered, and that the evidence which was properly considered was insufficient to support a conviction. While I agree with the first part of the argument, I disagree with the second and third parts.

[5] The trial judge, quite properly, based his finding of impairment on a consideration of the evidence as a whole, and the conclusion that he reached was both logical and reasonable. In doing so, he applied the test set out in the leading case on the issue of impairment: R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (1994), 1994 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.).

[6] The appeal is therefore dismissed.

Bale J.

March 13, 2015