The accused plead not guilty to the charge Impaired Driving. The crown elected to proceed summarily and called three police witnesses. In this case the accused admitted to the police that he had consumed alcohol and there was evidence that the accused drove very poorly.
The issue at the trial is, whether the court can be satisfied that the accused ability to operate a motor vehicle was impaired by alcohol as per the test in R. v. Stellato.
In August of 2010 Police Constable Kevin Bolduc was driving an unmarked police car and with him were two other plainclothes officers. It was 414am and the officers were returning to the police station after having completed an unrelated assignment.
As the officers approached a red light northbound on Victoria Park Avenue, Constable Bolduc noticed the accused sitting behind the driver’s seat of his vehicle stopped a green traffic light. The accused’s vehicle did not proceed for approximately 20 seconds on the green light, but eventually the accused turned northbound at a high rate of speed.
The accused’s vehicle made a very wide turn and almost struck some constructions pylons. Constable Bolduc testified that driving was “a little odd”. Constable Bolduc followed the accused’s vehicle northbound on Victoria Park.
The road narrowed from 2 lanes to one lane, there was a curve and a large hill. As the vehicles approached the next intersection, the accused’s vehicle accelerated quickly and began swerving – crossing from the northbound lanes into the southbound lane.
The officer estimated the accused’s vehicle was traveling more that 95 km/hour in a posted 60 km/hour zone. At the crest of the hill, the accused’s vehicle slowed to approximately 30km/hour so the officers were able to catchup.
As the accused’s vehicle approached the intersection at St. Clair Avenue, Constable Bolduc testified the accused swerved and almost hit the median in the center of the road.
The officer radioed for another police car and then he saw the accused’s vehicle drift two or three times across the center line into oncoming traffic. Constable Bolduc estimated the accused’s speed fluctuated between 40-80km/hour in a 60 km/hour zone.
At the light at O’Connor and Victoria Park, Constable Bolduc pulled parallel to the accused’s car. Police Constable Ryan D’Souza, who was seated in the rear, identified himself to the accused through the open window showing his police badge. The officer asked the accused to pull over.
All three officers including Sgt. Joe Capizzo, who was seated in the front east, said the accused looked over to the with his eyes glazed. The accused was eating a hamburger. Two officers testified the accused nodded as if agreeing to pull over. However, the accused waited until the red light turned green and proceeded to driver northbound another 1/2 kilometer before turning left onto a side street.
By this time, a marked police cruiser with emergency equipment pulled up behind the unmarked police car. The accused finally stopped his vehicle. Sgt Capizzo approached the driver’s side window and he said he smelled the strong odour of men’s cologne or perfume. The sergeant described it as a fresh scent of Cologne like a fragrance that had been worn for a while. Constable Bolduc described the strength as “overwhelming”.
The accused was asked to step out of the vehicle, which he did. The officers noticed the accused’s eyes were blood shot and glossy. Constable Bolduc testified that when the accused moved away from his vehicle, the smell of cologne dissipated and he could smell the odour of alcohol coming from the accused’s breath.
The accused provide the police officers his driver’s license and supporting documents. Constable Bolduc testified GM spoke heavily accented english, but the accused appeared to understand their directions and was compliant. During their conversation, the accused admitted he had had “two beers” to drink and he begged the officers not to charge him.
During cross examination, all three officers agreed the accused’s speech was not slurred; he responded appropriately to the officer’s directions and questions; as well his motor skill were normal and he was able to produce the documents upon demand. Constable Bolduc and Sgt. Capizzo agreed the accused was not unsteady on his feet although Constable D’Souza said the accused was “very unsteady” on his feet – swaying side to side and shifting his weight back and forth.
Officer D’Souza did not have direct contact with the accused because his job on scene was to instruct the uniform police officers. Constable Bolduc in describing the accused driving, agreed that Victoria Park was tricky to maneuver because of road construction at the corner where the accused was first seen by the police.
He also agreed that parts of northbound Victoria Park were winding and fairly hilly. All of the officers agree that eating food while driving can be a slight distraction although Constable D’Souza said when he had eaten and driven, he had not crossed lanes into oncoming traffic.
Constable Bolduc agreed the strong smell of fragrance coming from he accused’s vehicle could have been from an air freshener. All three officers testified that based on their observations the accused ‘s ability to operate a motor vehicle was impaired by alcohol.
The Law on Impaired Driving
The Criminal code of Canada does not provide a definition of impairment to operate a motor vehicle nor any special test for determining it. It is an issue of fact which the trial judge must decide on the evidence. Accordingly, before conviction an accused of impaired driving may be registered, the trial judge must be satisfied that the accused’s ability operate a motor vehicle was impaired by an alcohol or drug.
If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to the impairment, the accused must be acquitted. If the evidence of impaired driving establishes any degree of impairment ranging from slight to great, the offence has been made out.
It is important not to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.
It is not sufficient that there is evidence of consumption of alcohol or that the accused was impaired by the consumption of alcohol.
The question is whether here is any evidence that establishes beyond a reasonable doubt that the accused’s ability to drive a motor vehicle was impaired by alcohol to any degree.
Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physically symptomatology or physical test results, or some combination thereof, will have probative value on the issue of impaired driving ability to drive a motor vehicle, more of less, depending upon the nature and strength of the evidence adduced.
Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged is burden of proof of impaired driving. Crown counsel submits the accused admitted to police that he had consumed alcohol and together with extremely poor driving, the court ought to be satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol.
The Crown, argues it is pure conjecture that GM eating the hamburger could explain his very poor driving.
Defense Lawyer Nicholas Charitsis argues that the accused ‘s lack on indicia of impairment driving such as slurring of his speech, and the lack of unsteadiness on his feet, which the two officers who were directly involved with him did not notice, should, when factored as part of the whole evidence, be sufficient to raise a reasonable doubt.
In this case, where there is evidence of the accused having consumed alcohol and evidence of very bad driving, I have a reasonable doubt as to whether he was impaired by his alcohol consumption.
The evidence of Constable Bolduc regarding the nature and condition of the roadway raises the reasonable possibility that driving northbound on Victoria Park may have been more challenging than usual. Of course, that may not justify the excessive and fluctuating speed. However, the burden of proof as in all criminal cases rests squarely on the Crown.
Therefore, the lack of stronger and less ambiguous indicia of impairment does raise a reasonable doubt when I consider the totality of the evidence.
As such, I find the Crown has not proven the charge of Impaired Driving beyond a reasonable doubt and GM will be found not guilty.
Case Dismissed Lawyer for the Accused, Nicholas Charitsis Toronto Criminal Lawyer
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