Court File and Parties

COURT FILE NO.: CR-17-0033-AP DATE: 2018-09-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN T. Boisvert, for the Appellant Appellant

- and -

JENNIFER SIEMENS J. Dagsvik, for the Respondent Respondent

HEARD: September 7, 2018, at Thunder Bay, Ontario Mr. Justice W.D. Newton

Reasons for Judgment on Summary Conviction Appeal

Overview

[1] The Crown appeals Jennifer Siemens’ acquittal on a charge of operating a motor vehicle while impaired by drug contrary to section 253(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 and seeks a new trial.

[2] The central issue is whether the trial judge erred in his reasons when he asked himself: “was the driving of the accused (a) marked departure from that of the ordinary driver.”

The Facts

[3] A patrol officer observed Ms. Siemens making an illegal left turn (turning into the curb lane rather than the centre lane), driving less than the speed limit, and “riding the lane markers” among other things. The officer stopped Ms. Siemens and made further observations. The officer, a qualified field sobriety test officer, administered a number of sobriety tests and noted some impairment with balance and made an observation about Ms. Siemens’ eyes. She arrested Ms. Siemens. At the police station, the officer conducted additional testing and made a demand for a blood sample.

[4] The evidence at trial established that Ms. Siemens was taking prescribed medication for a number of health issues. Analysis of her blood revealed therapeutic concentrations of some medications. The effects of some of these medications include drowsiness, dizziness, lethargy, incoordination, etc.

[5] The evidence also disclosed that Ms. Siemens suffers from a number of medical conditions that impair her balance and alter the appearance of her eyes.

The Reasons

[6] After hearing the evidence and submissions, the trial judge gave the following oral reasons:

In regard to the matter before the court, the officer correctly stated that it is a global impression that she had based on all of the tests that were taken. But, notwithstanding that, was the driving of the accused (a) marked departure from that of an ordinary driver? To say generally, or counsel seemed to intimate generally, that all drivers are bad drivers, or straddle lanes, or go over to the right rather than to the centre as they’re required to do and, while it is a bit of a stretch, all in all taking all the evidence into account, I do not think that the Crown has made out its case and a finding of not guilty will be entered.

The Law

New Trial

[7] In R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-15, the Supreme Court of Canada set out the onus the Crown bears and the test to order a new trial after acquittal:

14 … It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

15 This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v. Morin, [1988] 2 S.C.R. 345:

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374] [Emphasis added.]

Impairment of Operation

[8] The focus of this trial and appeal is whether Ms. Siemens’ ability to operate a motor vehicle was impaired by drugs or alcohol. The question is not whether Ms. Siemens’ functional ability was impaired. The question is whether her ability to drive was impaired by drugs or alcohol to any degree.

[9] The following comments from the Alberta Court of Appeal in R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392, at paras. 23, 29, and 31, are helpful:

23 Impairment is a question of fact which can be proven in different ways. On occasion, proof may consist of expert evidence, coupled with proof of the amount consumed. The driving pattern, or the deviation in conduct, may be unnecessary to prove impairment. More frequently, as suggested by Sissons C.J.D.C. in McKenzie, proof consists of observations of conduct. Where the evidence indicates that an accused's ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused’s ability to drive was also impaired. In most cases, if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol. Put another way, as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol.

29 …Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired.

31 The test of weighing circumstantial evidence of conduct in support of an inference of impairment of ability to drive has not changed to mean that equal weight should be attributed to conduct which indicates a marked departure from normal conduct and conduct which indicates a slight deviation from normal conduct. That would have the practical effect of lowering the standard of proof of the offence. It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[10] In R. v. Stellato, 1993 ONCA 3375, 12 O.R. (3d) 90, at para. 14, the Ontario Court of Appeal repeated the concern over sufficiency of evidence to establish impairment:

14 In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment 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.

Analysis and Disposition

[11] I conclude that the reasons do not disclose an error. I read the reasons as indicating that the evidence of impairment was “so frail as to leave the trial judge with a reasonable doubt as to impairment” (Stellato, at para. 14). As was stated in Andrews, where “the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise” (at para. 31). I interpret the trial judge’s comments with respect to marked departure as relating to the evidence of impairment of driving and not the standard of proof the Crown was required to meet.

[12] This appeal is dismissed.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: September 13, 2018