Crown:  D. Slessor, Office of the Crown Attorney, Cobourg
Defence:  Craig Penney, Criminal Defence Lawyer, Cobourg

¶ 1  THE COURT:  Having heard the evidence in this matter and submissions, I prefer to give a decision when both the evidence and submissions are fresh in my mind. The Crown alleges that S.W. operated a motor vehicle with a blood alcohol concentration excess of 80 milligrams of alcohol in 100 millilitres of blood and that at the same time and place he operated a motor vehicle while his ability to do so was impaired by alcohol or drug. The alleged offence date is the 18th of September 2003.

¶ 2  In the course of this matter, Mr. Slessor is representing the Crown. Mr. Penney is representing S.W. We have heard from four witnesses: [his ex girlfriend, her friend,] Constables Legere and Davis of the Cobourg Police Service. No defence evidence was called in this matter.

¶ 3  The fact situation is fairly straightforward. [S.W.'s ex girlfriend] said that she was sleeping on the couch at around 1:30 in the morning at her house in Cobourg when she was awakened by Mr. W. coming into her house. She had not seen S.W. for about two years beforehand. She felt that he was acting oddly. She awoke from her sleep and saw Mr. W. in the backroom of where he was halfway coming through a sliding glass door. She asked him why he was there and he kept repeating when she would ask, "You don't know, do you? You don't know, do you?" She said that she smelled a very apparent odour of alcohol on him and said that he, in her words, "did not just look with it." She felt that he was impaired in some fashion and she said she based this opinion on the following observations: the smell of alcohol on him, which was just not on his breath but was simply on him. She said that his eyes looked very distant, and he kept repeating himself. She said that eventually she was able to persuade him to leave. She closed the door behind him and she spoke to her friend, J.G., about it. He had been in the shower when Mr. W. came in and woke her. She said that [her friend] then went outside and there were other dealings that he had with Mr. W.

¶ 4  She said that she had known Mr. W. prior to this and that she had had contact with Mr. W. when he had been consuming alcohol. She said that based upon her past observations of Mr. W. when he drank she observed indicia of impairment such as: slurred speak and inability to coordinate his motor skills properly such as standing up or sitting or walking and that he would sway. She added that when he was drinking his demeanour often got surly and she described him as being free-spoken and I took her description of that to mean that really when he is like that he is just not a very pleasant person and is insulting to those around him.

¶ 5  [Her friend] said that when he was told by [S.W.'s ex girlfriend] what had happened that he went outside. He said that when he went out he saw Mr. W. standing by the driveway. Mr. W. was not someone he knew before this. He said that he asked Mr. W. what he was doing here and received no answer and then he told him to leave and Mr. W. did not. It seems at some point in this confrontation [her friend] would physically push Mr. W. out the driveway and Mr. W. would stop and then [her friend] would then push him along further. In the course of this the only words said by Mr. W., as clearly as I can determine from the evidence of [her friend], was that [S.W.] told [her friend] he was not there to fight. [Her friend] said also that he did not wish to fight but wanted him to leave. He said eventually he told [S.W.'s ex girlfriend] to call the police. And Mr. W. got into his vehicle and then drove away. He said that when he drove away he drove to the stop sign to the end of the street but he did not do it one single motion. He would drive 60 to 80 feet and then stop and then drive a further 60 to 80 feet and then stop. Eventually he came to the stop sign and made a left hand turn.

¶ 6  [Her friend] said that he thought Mr. W. had obviously been drinking because he could smell alcohol, Mr. W. seemed confused to him, he could not make a sentence. [Her friend] said he had never dealt with anything quite like this before and that in the course of this entire conversation the only thing Mr. W. said was that he did not want to fight. He described him as needing physical help to get out of the driveway but I took [her friend]'s evidence to be really that that was simply [her friend] propelling him out of the driveway. [Her friend] said that at Mr. W.'s vehicle he asked for his keys but Mr. W. did not want to hand them over and he just left despite the fact that he felt that Mr. W. was drunk.

¶ 7  He said the police came soon after Mr. W. had driven away and as [S.W.'s ex girlfriend], and this is her testimony also, was speaking to the police Mr. W. then came back, turned on the side street where they were and was stopped by the police officer who had attended. It turned out this police officer was Constable Legere.

¶ 8  Constable Legere said that he was dispatched at 2:00 a.m. to [her] address. He said that he arrived about a minute later because the property was close to the police station. He said when he got there he met with [S.W.'s ex girlfriend] and spoke to her. He said that he was then told that she saw Mr. W.'s truck and the officer pulled in front of it to stop it as it came down the street. The truck stopped and at 2:04 a.m. Constable Legere got out and spoke to Mr. W.

¶ 9  He said that he formed a suspicion that Mr. W. had alcohol in his body based on the fact that when he approached the driver's side door and knocked on the glass Mr. W. partially opened the door and Constable Legere opened it the rest of the way. He said there was a strong odour of alcohol from inside the vehicle and he asked Mr. W. to step from the vehicle. He said that he noticed the smell of alcohol came from his breath as he exited the driver's door of the vehicle. He also said, in other portions of his testimony, that he formed not only a suspicion the Mr. W. had alcohol in his body but, in fact, he believed that Mr. W.'s ability to operate a motor vehicle was impaired by alcohol. He said that he formed this opinion prior to administering a demand for an approved screening device test to Mr. W. at 2:08 a.m.

¶ 10  His evidence in this matter, I think, can be said as escalating from his initial position in examination-in-chief that at the time roadside screening test demand was made he only had a suspicion of alcohol in Mr. W.'s system, to a position expressed later in his testimony that he had formed at that time a belief that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol. He acknowledged that this was not noted in his notes. He acknowledged that there is no paperwork before him, such as a synopsis prepared by himself in his notebook or in the arrest report that Mr. W. was actually arrested for the offence of impaired operation of a motor vehicle. Yet, he continued to assert that position after expressing it in his testimony after he had expressed the position that at the time the approved screening device demand was made at 2:00 a.m. he only had a suspicion and he essentially took the position that he had more than a suspicion at that point and had a belief on reasonable probable grounds that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol.

¶ 11  In any event, the demand having been made an approved screening device was delivered to the scene. A sample was received directly into the device at around 2:14 a.m. or about ten minutes after the stop. This resulted in a fail, which led the officer to believe that Mr. W. had a blood alcohol concentration in excess of 100 (sic) milligrams in 100 millilitres of blood. He said he then effected, based upon that failed alcotest result, an arrest.

¶ 12  This is where a portion of the difficulty in this matter arises. He said the arrest was effected in essence for impaired operation of a motor vehicle and for operating a motor vehicle with a blood alcohol concentration excess of 80 milligrams of alcohol in 100 millilitres of blood. Following the arrest, the procedural aspects of rights to counsel, a caution and a breath demand were read by the officer and questions of Mr. W. and responses obtained. After this Mr. W. was taken to the station leaving the scene at 2:21 a.m. and arriving within a minute or so because the station was nearby.

¶ 13  Eventually Mr. W. was then turned over to the care of Constable Davis, who Constable Legere understood was a qualified intoxilyzer technician. Constable Legere said that he spoke to Constable Davis and supplied him information prior to Mr. W. being turned over. He said he next saw Mr. W. at 3:12 a.m. when he was returned to him. And at 3:33 a.m., Mr. W. called to speak to a lawyer.

¶ 14  In the course of a fairly concise examination-in-chief and cross-examination, Constable Legere said that any opinion of impairment of the ability of Mr. W. to operate a motor vehicle while his ability was impaired by alcohol was essentially based upon the following factors: firstly, he knew that Mr. W. was driving a vehicle because he saw it; secondly, Mr. W. had an odour of alcohol about him and on his breath; thirdly, Mr. W. was largely non-responsive to an initial query made by Constable Legere in regards to the investigation Constable Legere was conducting about a person being unlawfully in a dwelling house and in subsequent conversation with him Mr. W. largely gave single word answers and was non-responsive in the opinion of Constable Legere. Fourthly, he said that he observed bloodshot eyes.

¶ 15  Constable Davis is a qualified intoxilyzer technician. As it turns out Constable Davis was also at the scene. It seems he had been an earlier training officer of Constable Legere and had stopped by the scene when he heard about it. Constable Davis said that he heard about this matter at around two o'clock in the morning. He said he arrived at the scene at 2:03 a.m. and at 2:05 a.m. he said he stood by as Constable Legere read a roadside screening device sample demand to Mr. W. He said another officer arrived with the approved screening device and then he stood by while a sample was provided. He said this sample resulted in a fail and at 2:08 a.m. Constable Legere arrested Mr. W. for the offence of operating a motor vehicle with blood alcohol concentration in excess of 80 milligrams of alcohol.

¶ 16  He said that in his opinion Mr. W. was heavily intoxicated at the time and that he formed that opinion of heavy intoxication prior to the roadside screening device demand being delivered by Constable Legere. He said that his opinion was based upon Mr. W.'s demeanour, the fact he had a strong smell of alcohol on his breath, the fact that he was very unsteady on his feet, and the fact that his speech was slurred. He said he also knew Mr. W. from previous dealings. He acknowledged that none of these reasons were in his notes; other than the fact of the strong odour of alcohol, but he says that these were indicia of impairment that he recollects. Constable Davis said he then went back to the police station and prepared an Intoxilyzer 5000C upon which he is qualified operator. He said that the instrument was ready to receive samples at approximately 2:45 a.m. He said after he had received Mr. W. into his care he supplied a further breath demand and caution and then received a sample of breath that was completed directly into the instrument at 2:46 a.m. He said this was analyzed by the instrument and resulted in analysis of 270 milligram of alcohol in 100 millilitres of blood. He said he did other things in the interim period relevant to his duties and then received the second sample of breath directly into the instrument at 3:05 hours. This sample was analyzed and yielded an analysis of 273 milligrams of alcohol in 100 millilitres of blood. He said that he prepared the certificate filed as Exhibit Number One in this matter and there is no issue regarding service although there was an issue regarding sufficiency of the certificate.

¶ 17  This essentially comprises all of the evidence before me in this matter that is relevant to my determination. I say that with some qualifications because there was a great deal of evidence heard in this matter and I take portions of my evidence to be a summary of what was lengthy evidence on particular points.

¶ 18  The onus, as always, lays upon the Crown to establish that the essential elements of the offences alleged have been made out. Having heard the positions advanced by both Crown and defence in this matter, in my opinion, there is a fundamental conundrum faced by the Crown in this matter in its ability to prove the allegations beyond a reasonable doubt. This conundrum, in my opinion, flows directly from the assertion by Constable Legere that Mr. W. was arrested for the offences of impaired operation of a motor vehicle and operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood and the assertion by Constable Legere, and I take it to be his final position, that Mr. W. was the subject of Constable Legere drawing a conclusion that his ability to operate a motor vehicle was impaired by alcohol prior to the administering of the demand for an approved screening device sample.

¶ 19  I see this creating the following two difficulties in this matter for the Crown and its prosecution of this matter: in order for the Crown to rely upon the presumption created by Section 258(1)(c) of the Criminal Code it must be in the position to establish that the procedural aspects of Section 254(3) of the Criminal Code have been met. That requires that for the over 80 charge there be evidence before me to show that a breath demand, pursuant to Section 254(3) of the Criminal Code, was made forthwith or as soon as practical in all the circumstances. To a certain extent this also relates to the ongoing timeline created by Section 258(1)(c)(ii) of the Criminal Code but I do not think that is the determinative issue.

¶ 20  Rather, in my opinion, the issue is the delivery of the demand. If one accepts what seems to be Constable Legere's stated position that prior to the making of the roadside screening device demand he had in his mind reasonable and probable grounds to believe that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol. The officer is quite clear that he did not make a demand at that time; rather he permitted the intervening incident of the roadside screening device test and the wait for that instrument to intervene. And this can, I think, fairly be said to result in the delay from 2:08 to 2:14. I say that with some qualifications though because that is the time based upon the evidence of Constable Legere but if one looks at the evidence of Constable Davis he said that at 2:05 a.m. a demand was made by Constable Legere and then an arrest was affected at 2:08 a.m. That would mean that the period of time by Constable Davis's watch from demand to failure and subsequent arrest was three minutes. By Constable Legere it is six minutes. I am willing to accept that the times may not match up because their watches may not have been synchronized but the interval itself does match up and I do not know how to account, in to totality of the evidence, for this.

¶ 21  In the end result the best Constable Legere can say is that he believes he made an arrest for both but that he had formed an opinion prior to the roadside screening device demand being made. And he freely acknowledged in his own testimony that based upon his present experience he would do things differently and would not probably give a roadside screening device demand and simply go straight to a formal breath demand based upon his belief that an offence had been committed as he said had been committed in his mind with Mr. W.

¶ 22  In the end result of this matter, this is an issue which I think affects the Crown's ability to rely upon the presumption as I am not satisfied that the prerequisite of Section 254(3) of the Criminal Code have been met. The other way this same dilemma impacts upon the Crown's prosecution of this matter and the ability to establish its case beyond a reasonable doubt is as follows: the Crown's position is in part that Constable Legere was of the opinion that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol and that this was evidence to Constable Legere. Nowhere in the note-taking of Constable Legere is this position expressed nor in fairness is it necessarily confirmed by the steps taken by Constable Legere in this matter. If he had the opinion then he did not affect an arrest on that opinion. If he had the opinion that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol then he did not record that opinion. Rather it seems that based upon his present recollection of this matter and the contents of his note-taking he is simply surmising that he had the opinion and that is the position advanced by Mr. Penney that he is surmising in this matter.

¶ 23  In simple terms, I am not in a position to choose between those two positions to the detriment of Mr. W. and I am obliged to consider that despite that the assertion of Constable Legere that he held that opinion must be considered in light of the absence of note-taking and must also be considered in the light of the actions he undertook at the time.

¶ 24  Having said this there is the opinion of [S.W.'s ex girlfriend], which is in some ways internally inconsistent based upon her earlier observations and knowledge of Mr. W.

¶ 25  I am of the opinion of [her friend]'s evidence is really of great assistance as far as impairment is concerned but I do not think it can unfairly be said that the situation between [her friend] and Mr. W. was necessarily a friendly one. It seems to be volatile.

¶ 26  And with regard to the evidence of Constable Davis, Constable Davis really from the standpoint of recorded information on matters that he acknowledged to Mr. Penney would be important indicia of impairment really has nothing more than the fact that there was a strong odour of alcohol contained in his notes. And he testified in Court to other indicia of impairment, at least one of which the slurring of the speech is not even mentioned by Constable Legere.

¶ 27  On the totality of the evidence before me in this matter I am unable to say that the evidence of Constable Legere amounts to anything more than an indication of alcohol consumption and I have no basis to believe that he formed an opinion at the time of arrest that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol or that Mr. W. was, in fact, arrested for the offence of impaired operation of a motor vehicle. Similarly, with regard to Constable Davis, I do not feel that his evidence, in these unusual circumstances, can satisfy me beyond a reasonable doubt in and of itself due to the reservations noted about his evidence.

¶ 28  In the end result, there is no evidence of impairment before me from any Crown witness, which will need not in some way be qualified. And having found, for reasons indicated, that I have a reasonable doubt as to the fact that the ability of Mr. W. to operate a motor vehicle was impaired by alcohol or a drug in the circumstances based upon the quality of the evidence before me and having found that for reasons indicated the presumptions sought to be relied upon by the Crown can not survive, I have no alternative but to dismiss the charges. Mr. W., would you stand sir? Mr. W., for reasons indicated the charges are dismissed.

¶ 29  And I will be quite frank, I am surprised that that in the end result is the verdict. I do know this, and I will go no further than saying this; there were things that happened that night that brought you to the attention of the police. There were things that happened that night that brought to the attention of two civilians in Cobourg. There were things that happened that night that in the course of your dealings with the police arouse suspicion on their part and arouse suspicion on the part of the two Crown witnesses as civilians. And I would suggest to you that their suspicions are correct.

¶ 30  And I am not able to say for the purpose of this proceeding today that they were correct to the extent necessary would have resulted in there being a considerable risk on the streets on Cobourg or anywhere else you may have operated your motor vehicle to that, not just to yourself but to anyone on or near the roadway; not to mention [S.W.'s ex girlfriend] in her own house.

¶ 31  And I will be very blunt with you; that scares me if what they say is correct. I am not able to say beyond a reasonable doubt it is correct. Is there someone in Court with you today?

¶ 32  CLIENT:  My mother.

¶ 33  THE COURT:  Okay. I think that at the end of the day you need to maybe think about this a little bit and decide if you ever want to place yourself in the situation were this to be a suspicion that attracts to you again because if it does along the way to having that degree of suspicion attract to you, and I will admit in this matter I am highly suspicious but I am not satisfied beyond a reasonable doubt. If that degree of suspicion does attract in the future then you are putting yourself at risk, you are putting everyone else at risk. And if the ultimate worse thing happens and your mom gets a knock on the door in the middle of the night from a police officer telling her there has been an accident and you have been killed or someone else has been killed. I do not want that to happen. And I would hope that you do not want it to happen. I know for a fact that your mom does not want that to happen. So I think you need to have a serious chat and I think you need to have some serious choices made about where all this takes you. It does not take you to a conviction but I hope it takes you to that sort of thought to avoid this sort of possibility in the future. Fair enough?

¶ 34  CLIENT:  Okay, thank you, Your Honour.

¶ 35  THE COURT:  Mr. Penney, is there anything further that may assist in this matter?

¶ 36  MR PENNEY:  No. Your Honour, I'd only indicate just in furtherance to your comments. And I appreciate Your Honour because Mr. W. is a productive member of society and a good step towards what Your Honour has suggested and talked about, in fact, is he's been prohibited from having alcohol due to the undertaking for the 16 months that this charge has been outstanding. So that from the community point of view, Your Honour, and from his point of view and I think to a great extent those interests are in line, that's an important first step for his is not having had alcohol for 16 months. And hopefully he'll make the commitment now in the ongoing future not to put himself in a position where he's blowing ... I mean, there is evidence before Your Honour. He blew 270 not at the time of driving. Those readings are just too high even from the health point of view let alone a driving point of view.

¶ 37  THE COURT:  Yes. I purposely did not mention the readings when I was talking to him because ... but yes, that is uncontradictable that ...

¶ 38  MR PENNEY:  Yes. Well the readings are in evidence it's just that the presumption doesn't apply so.

¶ 39  THE COURT:  Yes. And Mr. Slessor, for what it is worth too, you know, the officers in this matter, I think, did the best they could with the unusual situation they were confronted with. And I think we have this unusual situation, which I think is really difficult for the officers. There has been 16 months that have passed, by my count it is almost 18, and memories fade and things happen in the meantime. In the end result of this matter I do not wish this to be any form of denigration to the officer by my decision because I think in the circumstances they did the best they could in this job they have of protecting the public.

¶ 40  And Mr. W. for what it is worth, when do you things like this you make their job tougher so think about some of the things we heard about tonight. Think about what [S.W.'s ex girlfriend] talked about when you are drinking and think about how for some strange reason two of ... I do not know how many police officers there are in Cobourg.

¶ 41  CROWN:  Thirty-five.

¶ 42  THE COURT:  ... two of the thirty-five police officers in Cobourg picked at random today seemed to know who you were. And I do not think that is a good thing. So you try and make sure that they do not have to know who you are, okay?

¶ 43  CLIENT:  Okay, thank you.

¶ 44  THE COURT:  Alright. Mr. Slessor and Mr. Penney, thank you for allowing us to complete this matter. And thank you also to the Court staff I know we have imposed considerably on them but I think, in the end result, it is something that helps the system immensely by having it completed. So thank you all for allowing us to do and we will close this Court for the day. Thank you.

¶ 45  CROWN:  Thank you, Your Honour.