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IMPAIRED CARE & CONTROL

any degree of impairment from slight to great is sufficient to

 make out this element of the offence, see Supreme Court of Canada in  R. v. Stellato (1993) 78 C.C.C. (3d) 380.

However, it is one's ability to operate a motor vehicle which must be impaired, not

some general deviation of the defendant's conduct from the norm


R. v. Meek, 2008 NSPC 14


By the Court:


[1] The defendant is charged under s. 253(a) of the Criminal Code. The Crown

did not proceed to call evidence on a charge under s. 254 on the same Information

and that charge was dismissed.  

[2] The issue in this proceeding is simply whether there is sufficient evidence to

prove beyond a reasonable doubt that the defendant's ability to operate a motor

vehicle was impaired by alcohol. I will discuss in detail the elements of the

offence under s. 253(a), analyse the law in this area and review the evidence in

detail to determine the issue at hand.

[3] Before doing so I will briefly review the facts. The police first observed the

defendant's vehicle travelling east on the 101 highway near the Grand Pre exit. The

officer said he was on the lookout for the subject vehicle. While travelling behind

the defendant for approximately two kilometres the officer noticed that the vehicle

was following closely - about two car lengths - that of another vehicle. Both

vehicles were travelling slightly less than the speed limit. During this time the

officer noticed the defendant's car cross the yellow line approximately four times.

The officer engaged his lights, eventually his siren and the defendant slowed and

pulled over.

[4] The officer described the defendant's speech as slurred and he smelled

alcohol. He asked her to return to the police car. He described her as staggering

and unsteady on her feet as she proceeded towards his vehicle. He said he had to

guide her with his hand. He was concerned that she would fall into the traffic.

[5] At the police vehicle, the officer advised her of her Charter rights and a

breath demand was made. The officer testified he believed, she was impaired by

alcohol. When asked to explain his reasons for reaching this conclusion he

pointed to her mannerisms, his observations that her eyes were glossy and red and that her speech was slurred a bit. He said she had difficulty getting her license

out of her purse. The officer also described the defendant calling her husband on

her cell phone. During this call the defendant explained she was detained by the

police but told him, that is her husband, she was, up in a wooded area with a gun

on her. There was simply nothing in the officer's testimony which would lead the

defendant to conclude anything remotely like what she described to her husband

had occurred.


[6] Section 253(a) of the Criminal Code provides as follows, and in part:

Every one commits an offence who operates a motor vehicle ...or has the care or

control of a motor vehicle, ... while [his] ability to operate the vehicle, ...is

impaired by alcohol or a drug;


[7] This section creates an offence to operate a motor vehicle when the ability

to operate is impaired by alcohol. The Canadian Oxford Dictionary defines

ability as, capacity or power; cleverness; talent; mental or mental power, and

impaired as, damaged or weakened. It is of course not impaired driving

which is the operative phrase; rather it is impairment of one's ability to operate a

motor vehicle that is the focus, see R. v. Power [2002] A.J. No. 178.

[8] The manner of driving is not a requisite element of the offence, although it is

often circumstantial evidence of the condition of the operator, see R. v. Power,

supra.

[9] Impairment of one's ability to drive means an alteration in judgment and a

decrease in one's ability - physical ability, see R. v. Laprise 113 C.C.C. (3d) 87.

This, in my opinion, is consistent with the purpose behind the mischief at which

the section is aimed.

[10] Operating a motor vehicle in varied and sometimes unpredictable

circumstances requires certain skill and agility. It is a licensed activity permitted

only after being tested. Operating a motor vehicle also requires attentiveness and

quick reaction. It is the ability to operate a motor vehicle with these attributes

which allows motorists to drive safely. Any impairment of this ability to operate a

motor vehicle with these attributes risks harm because the necessity to call on these attributes; judgment, agility, quick reaction, often come without warning and without the benefit of deliberate forethought. It is certainly possible, therefore, that

a person's ability to operate a motor vehicle can be impaired even significantly and

that person can operate the motor vehicle adequately or even without incident,

however, their risk to others is no less simply because the circumstances have not

called upon their full range of driving skills and abilities.

[11] Accordingly, any degree of impairment from slight to great is sufficient to

make out this element of the offence, see R. v. Stellato (1993) 78 C.C.C. (3d) 380.

However, it is one's ability to operate a motor vehicle which must be impaired, not

some general deviation of the defendant's conduct from the norm, see R. v.

Andrews [1996] A.J. No. 8. For example, using the examples in Andrews, one's

ability to do brain surgery or thread a needle by the consumption of a small

amounts of alcohol may be impaired when their ability to operate a motor vehicle

may not. However it is sometimes difficult to discern between these two: conduct

and functional evidence as to the ability to operate a motor vehicle, see R. v.

Jessome [2006] N.S.J. No. 536.

[12] In my opinion the difficulty with these cases is not so much the legal test for

impairment of one's ability to operate a motor vehicle but whether the required

proof is present based on the evidence. In most incidences the evidence is

circumstantial of the defendant's ability to operate a motor vehicle. Generally the

evidence consists of indicia of alcohol consumption: smell of alcohol, red or glossy

eyes, flushed face, physical abnormalities, slurred speech, staggered walk, or failed

coordination tests, and finally, of lack of comprehension or inappropriate

behaviour, see R. v. Landes [1997] S.J. No. 785.

[13] The Court does not generally have the advantage of evidence of defendants'

driving under a wide variety of circumstances to judge whether their ability to

operate directly a motor vehicle has become impaired by alcohol. It can only look

at evidence it does have, drawn inferences from that and see if it can conclude

beyond a reasonable doubt that the defendant's ability is so impaired.

[14] Finally, even aberrant driving or an accident is not necessarily enough, see

R. v. Logan [2006] O.J. No. 2445. The Court must look at the totality of the

evidence to determine if an inference can be made that the defendant's ability to

operate is impaired by alcohol beyond a reasonable doubt . The Court must be

careful not to examine the evidence piecemeal but rather look at the totality of the

evidence. This is because it is often easy to explain away individual ôindicia of

impairment, if I can use that expression, when on the whole of the evidence an

inference can be made that there was in fact impairment, by alcohol, to operate.

However I think it is important to examine each piece of evidence to understand it

in the entirety of the evidence and to give it its proper weight.

[15] Accordingly in this regard I will review the evidence. Let me start with the

defendant's driving. The police officer testified she crossed the yellow line four

times in two kilometres while following a vehicle proceeding at less than the speed

limit. This was a relatively straight part of the highway. In cross-examination he

admitted that the defendant's driving movements were consistent with a motorist,

looking to pass. In my opinion I would not characterize the driving as aberrant or

unusual. Given the relative speeds of the vehicle, the location on the highway and

the distance indicated, in my opinion, the defendant was anticipating a passing

manoeuver. Also nothing can be inferred from her slowness in reacting to the

police lights given that this was a clean-roof vehicle. She pulled over when he

activated the siren. Also I do not place much significance on the defendant's ability

to locate her license and other papers. The officer admitted in cross-examination

that some women have large purses which often make it impossible to locate items

quickly. This, in my opinion, is not an uncommon occurrence.

[16] I also want to mention the rather unusual statement the defendant made to

her husband while in the police vehicle. It is difficult to properly assess the

motivation for these comments, why they were made and whether they are

indicative of the influence of alcohol. The defence argued that they were simply

histrionics. I am inclined to that view. They, quite frankly, do not strike me as

being necessarily the influence of alcohol but rather the reactions of someone who

was simply overreacting quite significantly I might add - to the presence of the

police.

[17] Having characterized these particular pieces of evidence let me review the

evidence which supports the Crown's case. The defendant had a smell of alcohol,

red and glossy eyes; her speech was slurred a bit. She was described by the

officer as drawing out her words and repeating words and speaking quickly.ö She

staggered when coming from the vehicle towards the police car and in the

experienced officer's opinion she was, impaired. This of course is in addition to

the other evidence I mentioned and commented on earlier. Notwithstanding I

specifically commented on some individual pieces of evidence it is the whole of

the evidence which I said earlier which is necessary to take into account.

[18] I recognize that for one's ability to operate a motor vehicle to be impaired

does not require that they be intoxicated or, to use the vernacular, drunk. Any

degree of impairment of one's ability in that regard from slight to great is

sufficient. However, because there was no specific tests of motor skills or

coordination tests I am left with drawing inferences about whether this defendant's

ability to operate a motor vehicle was so impaired, from the evidence I have before

me. Obviously, the greater the alcohol influence and the stronger the

manifestations of such influence the easier it is to make such inference. This is,

after all, a case of circumstantial evidence about the defendant's ability to operate a

motor vehicle.

[19] Each case of course turns on their own facts. This is, after all, a factual

determination. Cases where a variety of indicia of impairment influence were

present have resulted in different verdicts. I refer to the following series of cases,

all of which make out the Crown's case of impairment of ability to operate a motor

vehicle by alcohol: R. v. MacDonald [1998] N.S.J. No. 179; R. v. deSilva [2000]

O.J. No. 3402; R. v. Loreman 2005 NLTD 51; R. v. Moreno-Baches 2007

ONCSA 258 upholding [2003] O.J. No. 6220; R. v. Hamstra 2004 ABQB 156; R.

v. Cheliapine 2007 ONCJ 67; R. v. Denny 2004 ABPC 130; R. v. Jacobi 2007

SKPC 17; R. v. Giang 2002 ABPC 144; R. v. Jessome 2006 NSPC 65; R. v.

Macsugo [2005] O.J. No. 1061; R. v. Stone [2006] N.J. No. 100.

[20] In other cases varying degrees of indicia of alcohol influence were not

sufficient to sustain a criminal conviction, see: R. v. Landes, supra; R. v.

MacLellan 2004 NSSC 5; R. v. Ryan 2002 NSCA 153; R. v. Logan, supra; R. v.

Tovey 2006 ONCJ 492; R. v. Milton 2007 NSPC 3.

Again I will not detail the factual circumstances of those cases because, as I

indicated earlier, this is factual determination on the evidence before me in this

case.

[21] Having said this, the case of R. v. Ryan, supra, is instructive. In that case

the defendant was asleep but in care or control of a motor vehicle. His speech was

slurred, he had red, watery eyes and smelled of alcohol. The arresting officer said

he was very intoxicated, although the breath tech administrator indicated that the

defendant spoke normally and saw nothing to suggest the defendant's ability to

drive was impaired. The trial judge convicted the defendant. The summary appeal

court judge overturned the decision and entered an acquittal. The Nova Scotia

Court of Appeal dismissed a further appeal noting that the evidence was not

reasonably capable of supporting the trial judge's conclusion as to, ôcriminal

impairment. Leave to appeal to the Supreme Court of Canada was refused.

[22] As in all criminal trials the burden rests on the Crown to prove all of the

elements of the offence beyond a reasonable doubt. As my colleague Ross, P.C.J.,

aptly opined in R. v. Jessome, supra, cases of this nature require only slight

impairment of one's ability to operate a motor vehicle however, that must be

proved beyond a reasonable doubt. This is what I believe our Court of Appeal

meant by criminal impairment.ö

[23] Here I recognize that an experienced police officer opined about the

defendant's impairment, see R. v. Graat, [1982] 2 S.C.R. 819 although stronger

language such as intoxicating or other adjectives were not used. The only

evidence of motor impairment was the staggered walk which, given the location

along the edge of the roadway next to a high-speed highway, is not particularly

strong evidence.

[24] The other evidence is certainly probative of alcohol consumption and there

is little doubt that the defendant had consumed some alcohol. However, alcohol

consumption is not necessarily enough. It is the ability to operate a motor vehicle

which is the focus.

[25] Taking all of the evidence into account and given my comments earlier

about the other indicia and the little probative value it had, I am left with a

reasonable doubt that the defendant's ability to operate a motor vehicle was

impaired by alcohol. She is found not guilty and acquitted.

TUFTS, J.P.C.

Jim O'Neil, LL.B.

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