ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: CR 14-194-00AP
DATE: 20151020

B E T W E E N:

HER MAJESTY THE QUEEN

P.M. Leger, for the Crown

Respondent

• and -

DANIEL ROBERT MINKE

S. Menzies, for the Appellant

Appellant

HEARD: September 17, 2015

REASONS FOR JUDGMENT

[On appeal from the decision of Morneau J.
dated June 4, 2014]

André J.

[1] Mr. Minke appeals his convictions of the charges of impaired operation of a motor vehicle and excess blood alcohol. He submits that not only did the trial judge err in finding that the arresting officer had the requisite reasonable and probable grounds to arrest him, she also misapprehended the evidence and ignored relevant evidence. Worse, the trial judge erred by deploying a “bipolar approach to credibility” in which she rejected the appellant’s evidence for the simple reason that it did not accord with that of the arresting officer. The Crown submits that the trial judge properly considered the evidence and made findings of fact which were entirely justified on the evidence.

CONDUCT OF THE TRIAL

[2] Mr. Menzies filed an application prior to the commencement of the trial in which he alleged that the arresting officer breached his client’s ss. 8, 9, 10(a) and 10(b) Charter rights and that accordingly, the intoxilyzer results should be excluded pursuant to s. 24(2) of the Charter. The application was dealt with on the basis of a blended trial.

SUMMARY OF THE EVIDENCE

THE CROWN’S EVIDENCE

[3] On July 13, 2013, Constable Dhillon, an OPP officer, was involved in policing the annual Holstein Rodeo, a three day weekend event which featured a rodeo, country music and a ubiquitous beer garden where patrons typically engaged in late-night carousing. At approximately 5:50 p.m., he responded to a complaint that a white Chevy pick-up truck with persons in its back portion was being driven aggressively. The complainant advised the officer that the truck, which had modified mud tires, was “doing burnouts” in the campground.

[4] Cst. Dhillon proceeded to the camp grounds of the park to investigate the driver. He saw a truck which matched the description of the truck he had been told about. There were persons in the back of the truck. Cst. Dhillon observed Mr. Minke, the vehicle’s driver, rev his engine and proceeded to do a “burnout”: see Transcript of the Evidence, June 4, 2014, at p. 8, lines 3 to 13, line 16 [“Transcript”].

[5] Cst. Dhillon followed Mr. Minke’s vehicle to his campsite. Upon Mr. Minke’s arrival, he spun his wheels and in the process, sprayed dirt and mud onto a nearby vehicle.

[6] Cst. Dhillon saw Mr. Minke exit his truck and proceed to walk to his campsite. The officer asked Mr. Minke to stop. Mr. Minke complied.

[7] The officer made a number of observations of Mr. Minke after the latter exited his truck. He observed that Mr. Minke was “a little unsteady on his feet”. Mr. Minke appeared “really tired and sleepy”, his eyes were bloodshot, and his face appeared “quite red almost to the point as if it was sunburned”. While speaking to Mr. Minke, the officer smelled alcohol on Mr. Minke’s breath. Mr. Minke invited Cst. Dhillon to his trailer to get his licence. They both entered the trailer and Mr. Minke obtained his licence.

[8] Cst. Dhillon testified that he formed his grounds to arrest Mr. Minke at 6:02 p.m. and placed him in his cruiser upon receiving Mr. Minke’s driver’s licence. The officer testified that he did so after forming his grounds to arrest Mr. Minke for “impaired operation”.

[9] Cst. Dhillon transported Mr. Minke to the command post where, at 6:05 p.m., he formally arrested Mr. Minke. The officer later testified that he did not arrest Mr. Minke at his campsite to avoid any confrontation with the campers and to save Mr. Minke the embarrassment of being seen by other campers.

[10] Cst. Dhillon testified that at 6:06 p.m., he read Mr. Minke his rights to counsel. He advised Mr. Minke that he had the right to free advice from a legal aid lawyer. He advised him about the Ontario Legal Aid Plan and provided him with a telephone number that would put him in contact with a legal aid duty counsel lawyer for free legal advice.

[11] Upon being asked whether he understood his rights, Mr. Minke replied, “Yes”. Upon being asked whether he wished to speak to a lawyer now, Mr. Minke replied “No”.

[12] Under cross-examination, Cst. Dhillon maintained that Mr. Minke never asserted his rights to counsel. The officer also conceded that the complainant did not provide him with the name or description of the driver who was driving erratically. He conceded that there were a lot of similar white pick-up trucks at the rodeo with the same tire description: see Transcript, at p. 29, lines 14-30.

[13] The officer further conceded in cross-examination that Mr. Minke had no difficulty entering his trailer, obtaining his identification and producing it, neither did he have any difficulty getting into the back of the police car.

[14] Mr. Minke’s counsel conceded during the trial that Sgt. Nixon, a 27 year veteran, was qualified to operate the intoxilyzer machine, that the latter was operated properly and that the intoxilyzer readings of 130 mgs of alcohol in 100 ml of blood, and 120 mg of alcohol in 100 ml of blood, were accurate.

[15] Sgt. Nixon was in the company of Mr. Minke from 6:30 p.m. to 7:37 p.m. He testified that based on the “totality of everything” he observed, the effects of alcohol on Mr. Minke were obvious and that he believed that Mr. Mink’s ability to operate a motor vehicle was impaired by alcohol: see Transcript, at p. 55, line 17 to p. 56, line 5.

[16] Sgt. Nixon did not have any discussion with Mr. Minke about the latter’s right to counsel. He testified that he detected an odour of alcohol emanating from Mr. Minke, the latter’s face was flushed, his eyes were red and watery and Mr. Minke’s balance “wasn’t that bad”: see Transcript, p. 50, lines 6-16; p. 52, lines 12-18, p. 55, lines 22-28.

THE DEFENCE EVIDENCE

[17] Mr. Minke testified that he decided to drive his truck to prevent young women from dancing on top of it and damaging it. He denied doing any donuts or burnouts while driving his truck in the campsite.

[18] Mr. Minke also stated that another police officer spoke to him before the arrival of Cst. Dhillon. That officer confirmed that Mr. Minke would not drive again that night.

[19] Mr. Minke testified that the following verbal exchange between Cst. Dhillon and himself represents the sum total of the information he received from Cst. Dhillon about his rights to counsel. Following his arrest, Cst. Dhillon advised him: “You are under arrest for impaired driving. Would you like to call a lawyer?” Mr. Minke replied: “I don’t have a lawyer.” Transcript, p. 64, line 22; p. 65, line 6; p. 66, lines 12-20.

[20] Mr. Minke testified that Cst. Dhillon never gave him the 1-800 number for him to contact duty counsel. Similarly, he was never advised of duty counsel. He also testified that he would have consulted with a lawyer had he been read his full rights to counsel.

[21] Mr. Minke conceded in cross-examination that he consumed six to seven cans of beer from 12:30 p.m. or 1:00 p.m. to 5:30 p.m. He also conceded that:

• he was operating a white pickup truck, with five to six women that he did not know in the box of the truck;
• that his memory could have been affected by alcohol;
• that he had red eyes, a red complexion and alcohol on his breath when Cst. Dhillon dealt with him; and
• that he spun his wheels causing dirt and gravel to go into another truck parked near his campsite.

[22] In re-examination, Mr. Minke asserted that his alcohol consumption did not affect his ability to recount the events of the day of this arrest. He stated that there were other white Chevy trucks with similar mud tires at the rodeo. He had contacted these truck owners who had sent him pictures of their trucks. However, the trial judge did not allow the photos of the trucks to be marked as exhibits in the trial.

TRIAL JUDGE’S DECISION

SECTION 8 OF THE CHARTER

[23] In considering whether Cst. Dhillon had reasonable and probable grounds to arrest Mr. Minke for impaired driving, the trial judge relied on the following cases for the legal test for the formulation of reasonable and probable grounds: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641; R. v. Smith (1996), 1996 1074 (ON CA), 28 O.R. (3d) 75 (C.A.); R. v. Wang, 2010 ONCA 435; and R. v. Censoni, [2001] O.J. No. 5189 (S.C.). She observed at para. 50 of the judgment that the officer’s honest belief that Mr. Minke had committed the offence must be supported by objective facts. The trial judge noted that this latter consideration was satisfied when, as Durno J. noted in Bush, at paragraph 45, “a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds to arrest.”

[24] In finding that Cst. Dhillon had the requisite legal grounds to arrest Mr. Minke for impaired driving, the trial judge relied on the following evidence:

• while there were many similar white 4 by 4 trucks at the event, he did not see any other similar looking trucks with people standing in their respective boxes.
• while Cst. Dhillon did not see Mr. Minke’s truck doing donuts, he saw the truck do a “burn-out”.
• Cst. Dhillon twice saw Mr. Minke spin his tires.
• Cst. Dhillon made the following observations of Mr. Minke (at para. 56):

1. He was a little unsteady on his feet
2. His face was flushed and red
3. His eyes were red
4. He had an odour of alcohol on his breath
5. He appeared tired

[25] Based on these observations, the trial judge concluded at para. 12, that Cst. Dhillon “did have sufficient reasonable and probable grounds to arrest the defendant for impaired operation of a motor vehicle when I consider his honestly held belief at the time and with the objective totality of the evidence.”

SECTION 10 OF THE CHARTER

[26] The trial judge noted, at para. 62 of her Reasons for Judgment, that:

If I accept the defendant’s evidence or if the evidence satisfies me on a balance of probabilities that Dhillon did not advise him of his rights to counsel that would be a breach of section 10(b) of the Charter.

[27] She noted at para. 63 that:

If the right to counsel was not properly implemented, absent proof beyond a reasonable doubt that the defendants gave an informed waiver of that right, the failure to implement rights to counsel would also be a breach of section 10(b) of the Charter.

[28] The trial judge indicated at para. 65, that she disbelieved Mr. Minke’s testimony that Cst. Dhillon did not fully explain his s. 10(b) rights and simply asked him if he wanted to call a lawyer. She accepted the officer’s testimony that he had explained the right to speak to counsel of his choice or to a free legal aid duty counsel and provided Mr. Minke with the 1-800 number from his notebook. She accepted Cst. Dhillon’s testimony that Mr. Minke indicated that he did not wish to speak to a lawyer or call duty counsel.

[29] The trial judge also considered whether the failure to re-advise Mr. Minke of his right to counsel at the police station violated his s. 10(b) Charter rights. She relied on the Court of Appeal’s decision in R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 42, for the proposition that:

When a detainee has been properly cautioned at the roadside and has indicated that he or she does not wish to speak with a lawyer, failure to re-advise the detainee of his or her right to counsel at the police station does not necessarily constitute a breach of s. 10(b).

[30] The trial judge decided that the failure to advise Mr. Minke of his right to counsel at the station did not violate his s. 10(b) Charter rights. She provided the following reasons for that conclusion at para. 69:

He was responsive to the questions asked. At no time did he show any indication that he was confused or not hear what Dhillon was saying to him within the police car or that he did not understand what Dhillon was telling him. Dhillon did ask the defendant if he wanted to speak to a lawyer and he also asked him if he wanted to speak to duty counsel.

IMPAIRED DRIVING CHARGE

[31] The trial judge concluded, at para. 76 of her Reasons for Judgment, that the Crown had proven the impaired driving charge beyond a reasonable doubt. She provided the following reasons for her decision:

At the time the defendant last drove his truck he did a burn out in a camping area with 5 people in the box of his truck and when parking it shortly after that again spun the tires. While there was nothing unusual in the speed with which he drove the truck by the officer, the defendant’s judgment was affected by the alcohol in his body by driving through a camp area with people in the box of a truck. The indices of impairment included the watery eyes, the slight unsteadiness as he got out of his truck, the odour of alcohol on his breath. His flushed and or red face may well have been caused by the sun.

[32] The trial judge further concluded that Sgt. Nixon, who had formed the opinion that Mr. Minke’s ability to operate a motor vehicle was impaired by the consumption of alcohol, corroborated the testimony of Cst. Dhillon to that effect.

ANALYSIS

[33] This appeal raises the following issues:

(1) Did the trial judge err in concluding that Cst. Dhillon did not violate Mr. Minke’s s. 8 Charter rights?

(2) Did the trial judge err in concluding that Mr. Minke’s s. 10 Charter rights were not violated by Cst. Dhillon?

(3) Did the trial judge err in concluding that the Crown had proven the impaired driving charge beyond a reasonable doubt?

ISSUE NO. ONE - Did the trial judge err in concluding that Cst. Dhillon did not violate Mr. Minke’s s. 8 Charter rights?

[34] Counsel for Mr. Minke asserts that the trial judge misstated the evidence and ignored relevant evidence. Specifically, he contends that contrary to the trial judge’s findings, Cst. Dhillon never testified that he observed Mr. Minke to be a little unsteady on his feet. He further submits that:

Chronologically, on the evidence, having called out to the defendant the officer spoke to him and asked the Appellant for identification at which point the Appellant went into his trailer found his identification and produced it to the arresting officer. There was no unsteadiness or any lack of motor skills exhibited at the time. As such the trial judge’s reasons demonstrate that she misstated the evidence of the officer and her reliance on it to find that objective grounds existed cannot withstand appellate scrutiny.

[35] In my view however, the trial judge did not misapprehend Cst. Dhillon’s evidence. In answer to a question from the Crown concerning how Mr. Minke walked away from his vehicle after exiting it, Cst. Dhillon replied:

When he first got out of the vehicle, it’s raised up, and he got out and he was walking away he was a little unsteady on his feet.

Transcript at p. 15, lines 29-31.

[36] Furthermore, there was the following verbal exchange between Cst. Dhillon and the Crown:

Q. All right. And when you said you observed him he was walking he was a little unsteady on his feet?

A. That’s correct, sir.

Transcript at p. 17, lines 2-4.

[37] Under cross-examination, Mr. Minke’s counsel asked Cst. Dhillon the following question and received the following answer:

Q. And that’s where you noted the slight unsteadiness you referred to?

A. That’s correct, sir.

Transcript at p. 34, lines 30-31; p. 35, line 2.

[38] The trial judge relied on this evidence and the observations of Cst. Dhillon to conclude that the officer had the requisite reasonable and probable grounds to arrest Mr. Minke for impaired driving. She applied the proper legal test in arriving at that conclusion. She properly noted that the test for reasonable and probable grounds has both a subjective and objective component and is not an onerous one.

[39] Reasonable and probable grounds should not be conflated with proof beyond a reasonable doubt: R. v. Censoni, at para. 30-31, R. v. Bush, at paras. 36-37. If, as the Supreme Court of Canada noted by confirming the Court of Appeal’s opinion in R. v. Stellato, 1994 94 (SCC), [1994] 2 S.C.R. 478, any degree of impairment, ranging from slight to great, may be sufficient for a finding of guilt, it stands to reason that the test for reasonable and probable grounds does not require an exhaustive list of “indicators” or observations, to be constitutionally valid.

[40] The appellant also relies on two further instances where he claims the trial judge misapprehended the evidence when assessing whether Cst. Dhillon had reasonable and probable grounds to arrest Mr. Minke for impaired driving. First, he contends that the Crown did not prove that Mr. Minke’s truck was the one initially complained about. There were many similar white trucks in the area and the officer had no basis to conclude that Mr. Minke’s truck was the one which was seen doing burnouts.

[41] Second, the appellant asserts that Cst. Dhillon did not see any bad driving and therefore, given the paucity of evidence regarding impairment, the officer lacked reasonable and probable grounds to arrest him.

[42] Regarding the first point, the initial complaint indicated that the white truck which was being driven aggressively had a number of persons in its box. Mr. Minke’s truck was the only one seen to have passengers in the back portion of it. Accordingly, it was entirely proper for Cst. Dhillon to investigate Mr. Minke.

[43] Second, contrary to the appellant’s assertion, Cst. Dhillon did see Mr. Minke do a “burnout” and therefore had every right to investigate him. Cst. Dhillon testified that:

[W]hen I first noticed that it was revving the engine, this is where you step on a [sic] accelerator and the engine speeds up, revving it, and then it just accelerated. The foot came off the brake and you could see the ruts on the into the ground, like ruts I’m meaning ground being displaced and being sprayed behind it…

Transcript at p. 9, lines 6-13.

[44] The officer further testified that he saw Mr. Minke spin the wheels of his truck on a second occasion to the point where a second truck was covered in dirt and stones as a result: see Transcript, at p. 9, lines 14-22.

[45] There is therefore no evidentiary basis for the submission that Cst. Dhillon did not see any burnouts or bad driving by Mr. Minke.

[46] In my view, the trial judge was justified in concluding that Cst. Dhillon had the requisite grounds to arrest Mr. Minke. Accordingly, that ground of appeal must fail.

ISSUE NO. 2 - Did the trial judge err by concluding that Cst. Dhillon did not violate Mr. Minke’s s. 10 Charter rights?

[47] Prior to reviewing the appellant’s submissions concerning this issue, it is necessary to set out the standard of appellate review concerning a trial judge’s findings of credibility.

[48] Absent palpable or overriding error, factual findings by a trial judge should be afforded considerable defence: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 49; R. v. Cresswell, 2009 ONCA 95, at para. 14.

[49] In Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-297, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291, the Court of Appeal described “palpable and overriding error” as follows:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: [Citation Omitted]. Examples of Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. the appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [Citation Omitted].

[50] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom in the assessment of the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 32-33, 37 and 42.

[51] In reviewing the learned trial judge’s factual determinations, the test is not whether the appellate judge would have arrived at a different factual conclusion but whether it was open to the trial judge to make the factual conclusion that he or she did.

[52] The Appellant makes the following submissions regarding the trial judge’s factual findings:

(1) The trial judge’s reasons for accepting the evidence of Cst. Dhillon were “conclusory and generic” and failed to appreciate the differences between credibility and reliability.

(2) The reasons for rejecting the evidence of the appellant were essentially that his evidence did not accord with that of the officer. This approach amounts to nothing more than a “bipolar approach” to credibility which Justice Hill cautions against in R. v. Sandhu, [2005] O.J. No. 1710 (S.C.), at para. 3.

(3) The trial judge misstated the evidence and placed no weight on the significant problems with reliability of the officer’s evidence which emerged during cross-examination.

[53] The trial judge accepted Cst. Dhillon’s version of events and his testimony that Mr. Minke replied “no” when asked whether he wished to speak to counsel of his choice or to duty counsel. The trial judge also rejected Mr. Minke’s testimony that he was never advised about duty counsel let alone given a telephone number for duty counsel.

[54] The trial judge provided reasons why she accepted Cst. Dhillon’s testimony regarding the investigation and arrest of Cst. Dhillon. These include the following:

1. Cst. Dhillon had twelve years’ experience as a police officer.
2. The officer made detailed legible and lengthy notes concerning his investigation.
3. The officer made his notes very soon after he turned Mr. Minke over to Sgt. Nixon, at a time when the investigation was fresh in his mind.
4. There was no evidence that anything interfered with his ability to make his notes.
5. The officer’s testimony did not contradict his notes.
6. Cst. Dhillon treated Mr. Minke with dignity and did not demonstrate any animosity towards him.

Reasons for Judgment, June 14, 2014, paras. 6-7.

[55] Given that the trial judge provided reasons why she accepted Cst. Dhillon’s evidence, it cannot be said that her fact findings with respect to Cst. Dhillon’s testimony were “generic and conclusory”.

[56] Second, the trial judge provided a number of reasons why she rejected Mr. Minke’s testimony with respect to what Cst. Dhillon read to him concerning his rights to counsel. These are:

1. He acknowledged he could not remember everything that Cst. Dhillon said to him on some of the issues.
2. Mr. Minke consumed six or seven cans of beer between 12:30 p.m. or 1:00 p.m. and 5:30 p.m. before he encountered Cst. Dhillon.
3. Mr. Minke acknowledged that alcohol can affect one’s memory. He later testified in re-examination that his memory of these events was not affected by alcohol.
4. Mr. Minke was tired and not feeling well when he interacted with Cst. Dhillon. His memory of his interaction with Cst. Dhillon was also compromised by these additional factors.
5. Mr. Minke testified from memory alone without any suggestion that he made notes after the investigation to assist him in recalling dates.

[57] Clearly, the trial judge did not regard her factual findings as the logical result of a credibility contest between Cst. Dhillon and Mr. Minke. Neither did she engage in “bipolar” reasoning, to use Justice Hill’s terminology in R. v. Sandhu. It was open to the trial judge to prefer Cst. Dhillon’s testimony over that of Mr. Minke. In so doing, she did not commit palpable or overriding error.

[58] To that extent, her factual findings should be accorded a great deal of deference.

[59] Mr. Menzies, on behalf of Mr. Minke, submits that the trial judge erred in that her findings of fact regarding Mr. Minke’s response to Cst. Dhillon are internally inconsistent. He points to the following passage, at para. 66 of the Reasons for Judgment, in support of his position:

Dhillon asked him if he wished to speak to a lawyer and he said no. He asked him if he wished to speak to duty counsel and he said no. I accept that the defendant told Dhillon that he did not have a lawyer. That is consistent as well with Dhillon asking the defendant if he wished to speak to duty counsel to which the defendant replied no.

[60] Mr. Menzies asserts that his client did not unequivocally waive his s. 10(b) Charter rights and that the trial judge erred in finding that he did.

[61] Contrary to Mr. Menzies’ assertion, the trial judge repeatedly stated that she accepted Cst. Dhillon’s testimony that Mr. Minke said “no” when he advised him about speaking to a lawyer and to duty counsel. She indicated this at paras. 66 and 71 of her judgment. Mr. Minke, the trial judge found, told the officer that he did not have a lawyer but she also found that he unequivocally stated that he did not wish to speak to a lawyer or duty counsel. There is nothing inconsistent about the trial judge’s findings on this issue.

[62] Accordingly, this ground of appeal must fail.

ISSUE NO. THREE – Did the trial judge err in concluding that the Crown had proven the impaired driving charge beyond a reasonable doubt?

[63] The trial judge noted at para. 76 of her Reasons for Judgment that the Crown had proven the impaired charge beyond a reasonable doubt. She provided the following reasons for her decision:

At the time the defendant last drove his truck he did a burn out in a camping area with 5 people in the box of his truck and when parking it shortly after that again spun his tires. While there was nothing unusual in the speed with which he drove the truck by the officer, the defendant’s judgment was affected by the alcohol in his body by driving through a camp area with people in the box of a truck. The indices of impairment included the watery eyes, the slight unsteadiness as he got out of his truck, the odour of alcohol on his breath. His flushed and or red face may well have been caused by the sun.

[64] Mr. Minke’s counsel submits that in convicting his client of impaired driving “the trial judge considered irrelevant matters not presented in evidence”. Specifically, he contends that there was no evidence in the trial that driving people in the box of a truck was unreasonable behaviour and constituted evidence of impairment. Furthermore, he asserts that the trial judge failed to consider other factors that were inconsistent with impaired driving, such as Cst. Dhillon’s testimony that there was nothing improper about Mr. Minke’s driving. He also submits that the trial judge also failed to consider that Mr. Minke had no difficulty retrieving or finding his documents and the fact that there was no indication that alcohol consumption had affected Mr. Minke’s motor skills.

[65] While driving with persons in the box of his truck was not indicative of impairment, doing burnouts by revving his engine with passengers in the box constitutes evidence which, along with other evidence, supports a finding of guilty of impaired driving. Such evidence included Mr. Minke’s watery eyes, the odour of alcohol on his breath and his unsteadiness after leaving his vehicle. Additionally, the intoxilyzer readings and Mr. Minke’s testimony that he consumed six to seven beers before he was investigated by Cst. Dhillon, in combination with the other factors noted by the trial judge, constitute evidence of impaired driving. As confirmed by the Supreme Court of Canada in R. v. Stellato, any degree of impairment, ranging from slight to extreme, can support a finding of guilty of impaired driving. There was ample evidence in this trial to justify the trial judge’s conclusion that the Crown had proven this charge beyond a reasonable doubt.

DISPOSITION

[66] For the above reasons, the appeal is dismissed.

André J.

Released: October 20, 2015