R. v. Hinds Date:, 2013 BCPC 175

Citation: R. v. Hinds Date: 20130618 2013 BCPC 0175 File No: 157489-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ERIC ROBERT HINDS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: S. Fudge Counsel for the Defendant: G. Simair Place of Hearing: Victoria , B.C. Date of Judgment: June 18, 2013

[ 1 ] THE COURT (orally): Eric Robert Hinds is charged on a two-count information. Count 1 alleges as follows: Eric Robert HINDS, on or about the 18th day of April, 2012, at or near Saanich, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to Section 253(1) (

a) of the Criminal Code . Count Number 2 alleges as follows: Eric Robert HINDS, on or about the 18th day of April, 2012, at or near Saanich, in the Province of British Columbia, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code . [ 2 ] In the course of the trial, Crown confirmed that they were only proceeding with respect to Count 1 and were not going to call evidence on Count 2. I was invited to dismiss Count 2 on that basis. Accordingly, I will make that ruling. [ 3 ] The events giving rise to the charges occurred on the date of 18 April 2012 at or near Sayward Road at the intersection of the Pat Bay Highway, also known as Highway 17. Crown called a number of witnesses who were present in or about the area during the time that an accident occurred. That accident involved the vehicle of Mr. Hinds.

He was driving that vehicle on the Highway 17 on the evening in question. Each of the witnesses called by the Crown viewed different aspects of the events giving rise to the accident. I will review the evidence provided by Crown. [ 4 ] Crown's first witness was Mark Douglas Atleo. Mr. Atleo is a handyDART bus driver. He was driving his bus on the evening in question. He viewed a white SUV-type vehicle in and around the area of Royal Oak Avenue, which is an intersection south of the Sayward Road intersection of Highway Number 17.

He noted a white Dodge car that was travelling in the same direction as he was, northbound towards Sidney, British Columbia, appeared to have swerved into his lane. Mr. Atleo had passengers aboard his vehicle. At the time in question, he was travelling in the left-hand or fast lane on Highway 17. The vehicle that he observed accelerated and Mr. Atleo was unable to catch up with the vehicle that he had observed swerving. Mr. Atleo drew the conclusion that this may have been caused by the driver of the vehicle utilizing a cell phone.

He did not report the matter to his dispatcher nor did he think it necessary to report the incident that he observed as an impaired driving situation. [ 5 ] Mr. Atleo continued on the Pat Bay Highway towards the intersection of Sayward Road. He was travelling at approximately 200 yards or farther behind the vehicle. He suddenly noted that the vehicle that he was following appeared to be going to turn left at the Sayward Road intersection.

He testified that he saw a vehicle go up in the air, and he formed the impression that there had been a collision between the vehicle that he had been observing and another vehicle at the intersection of Sayward Road and Highway 17. [ 6 ] Mr. Atleo continued up to that intersection. He noted that the vehicle that had previously passed him was sitting in the intersection with considerable damage to its right front passenger side. Mr. Atleo did testify that as he was proceeding towards the Sayward intersection, there was another incident in which he had observed the car swerving.

It is unclear on his evidence whether or not the significant swerving that he observed was earlier on or towards the Sayward intersection. From his evidence, I have concluded that the swerving that he noted as being the second incident was closer towards the Sayward intersection. [ 7 ] When Mr. Atleo arrived on the scene, he noted the engine in the vehicle was still running. There were fluids leaking out. He observed that the vehicle appeared to have taken out a pole containing a traffic signal. Mr. Atleo proceeded to the vehicle. He turned off the engine of the vehicle that was still running.

He observed the person whom he believed to be the driver of the vehicle. He described him as a young person approximately 20 years of age. That person who he understood to be the driver was standing outside of the vehicle speaking with other people at the scene. Mr. Atleo did not intervene with any further discussions involving the person whom he understood to be the driver. [ 8 ] Mr. Atleo was contacted by the police. He did provide a statement to the police in and around May 2, 2012. That was approximately two weeks following the accident.

He was informed by the police that they were investigating the incident as a drinking and driving situation. Accordingly, Mr. Atleo provided details by way of a statement to the police. He indicated in his evidence, candidly, that he put in details about his observations that could give rise to a conclusion about impaired driving since he knew that it was the subject of the police investigation. [ 9 ] At no time did Mr. Atleo observe a cell phone being utilized by the driver of the vehicle. Mr.

Atleo did confirm that he observed that the airbags in the vehicle that had been involved in the accident had deployed, and as I understand it, that was on the driver's side of the vehicle. [ 10 ] Noteworthy about Mr. Atleo's testimony was that he believed that he observed that the car had actually become airborne during the course of the accident. Although he did not engage in any communication or discussions with the driver of the vehicle, Mr. Atleo was standing within two or three feet of him.

He did not detect or was unable to detect any smell of alcohol or liquor; however, he did confirm that as a result of his own physiological condition, he is unable to smell alcohol or liquor. [ 11 ] The second witness that was called by the Crown was Sandra Thoen. Ms. Thoen is a registered nurse. She was proceeding to work in Sidney, British Columbia, driving north on Highway 17. She was approaching the intersection at Sayward Road. She observed a flying pole which, as it turned out, contained the traffic light standard. This debris landed on the highway in front of her. She testified that she braked and stopped.

She delayed somewhat in getting out of the vehicle for a brief period of time. She wanted to avoid putting herself in peril, that is being hit by another motor vehicle on the highway. She departed from her vehicle and approached the damaged SUV vehicle which she saw across the intersection, now in a position facing back towards her. She saw an individual get out of the vehicle from the driver's side. That person apparently did not require any assistance in doing so. She described the person as white

Caucasian, being approximately five-foot-six in height. She made that estimation based on her own height. She spoke to the driver. He indicated that he wanted to go back to his vehicle for the purposes of getting his cell phone. Ms. Thoen loaned the individual her own cell phone. He made two calls on that cell phone. She indicated that he had difficulty dialling on a third call that he was making. She assisted him in that regard. [ 12 ] She testified that the driver of the vehicle was very shaken up. She asked him how he was, and from his responses, she gained the impression that he was all right.

She indicated that the police arrived on the scene quite quickly. She observed that the police, having approached the driver of the vehicle, put him in handcuffs and then escorted him to the back seat of the police car. [ 13 ] She indicated that she did not actually observe the vehicle strike the pole which contained the traffic lights. She did indicate that she knew that the intersection of Sayward Road and Highway 17 was a high accident intersection.

Accordingly, she had been approaching it with some caution, looking particularly to the right which, as I understand her evidence, is an area of some concern as traffic attempts to merge from Sayward Road onto the highway. [ 14 ] When asked to describe her observations of the person whom she understood to be the driver, she described him as "shooken up." She indicated he was "shaky" and described what she characterized as a nervousness from being the cause of an accident. She observed that he seemed to speak normally.

So far as I recall from the evidence, she was not asked as to whether or not she detected any alcohol odour on his breath. [ 15 ] The next witness called by the Crown was Susan Parsons. Like Ms. Thoen, who is a nurse, Ms. Parsons apparently has a nursing background. She was travelling northbound in a vehicle with her husband on the Pat Bay Highway heading north towards Sidney. As the vehicle in which she was travelling approached the intersection of Sayward Road, she observed a white vehicle kitty- corner across the intersection. She observed smoke and wires.

She and her husband concluded that there had been an accident. Her husband pulled the vehicle over and she alighted from the vehicle. She indicated that the occupant of the white vehicle which had been involved in the accident was still in the vehicle. There was only one occupant. She indicated that after the occupant of the vehicle had departed from the vehicle, that she was in close physical proximity to him. She prevented him from returning back to the vehicle.

She described that as physically stopping him from going to the vehicle to get his cell phone. [ 16 ] She indicated that from her observations of the former occupant of the vehicle, that there were no injuries. She did have a concern that the individual who had been an occupant of the vehicle may have sustained an injury by virtue of not wearing a seat belt.

There were cracks in the windshield, and she was concerned as to whether or not that individual had struck his head on the windshield of the vehicle. [ 17 ] She described her observations of the driver as being "a little bit strange," which she attributed to the accident. [ 18 ] She did not have any recollection of observing the occupant walk in any fashion. She did indicate that although he appeared shaken up, she detected no smell of alcohol. [ 19 ] The next witness called by the Crown was Julia Wakal. Ms. Wakal was travelling northbound on Highway 17.

She had come to a stop to make a left-hand turn at the Sayward intersection. She had stopped because of a red traffic signal. She was observing traffic flow in her rear-view mirror when she saw lights on a vehicle coming up very quickly behind her. She observed that the car was on the left side of the roadway, and then she observed that the vehicle appeared to drive onto the median behind her, proceeded beside her, and then hit a traffic post which was located at the front of her vehicle.

She indicated that she fully expected to be struck by the motor vehicle which was travelling in the manner which I have described. [ 20 ] The vehicle, having struck the post, actually tore the post out, and then the vehicle spun across the intersection, coming to rest in the oncoming traffic lane but facing in a southerly direction. [ 21 ] She did not get out of her vehicle. She dialled 9-1-1. She observed other people getting out of their vehicle to check the driver. [ 22 ] She did observe the occupant of that car getting out of the vehicle. In her words, he looked quite shocked.

She believed that the police arrived within a half an hour, and she observed the occupant being arrested. [ 23 ] Significantly she did not see the car involved in the accident becoming airborne notwithstanding the fact that she was but a few feet from that vehicle. [ 24 ] The final witness that was called on behalf of the Crown was Police Officer Aaron Thompson of the Saanich Police. As at the date of the incident, he had four years' experience as a police officer.

On the evening in question, he had been dispatched at 9:45 p.m. to what he understood to be a single vehicle accident at the corner of Sayward Road and Highway 17 in Saanich, British Columbia. He arrived within four or five minutes. [ 25 ] He observed the accident scene. He noted the median area which had contained the traffic light fixture. He saw scrape marks on the median, and he noted that the signal pole had been totally knocked off, leaving only wires sticking up.

He noted the SUV vehicle across the intersection with significant damage to the front passenger side. [ 26 ] He spoke with people in attendance at the scene. As a result of those discussions, a person was identified as having been the driver of the vehicle. That person was a young male. As it turned out, that young male was Mr. Hinds, the accused in this matter. [ 27 ] Constable Thompson provided evidence with respect to his observations of Mr. Hinds. He indicated as follows. [ 28 ] First of all, there was a significant odour of motor oil emanating from Mr.

Hinds, and from that I understood to be from the clothing that Mr. Hinds would have been wearing. He described what he characterized as a "slight" odour of liquor. He also indicated that with respect to some of the normal indicia of impairment, that the eyes of Mr. Hinds were wide open and more exaggerated than would be usual. He also indicated that Mr. Hinds' eyes were quite glassy.

[29] As a result of a conversation he had with Mr. Hinds, he formed the opinion that he had reasonable grounds to make a breathdemand in relation to s. 253 of the Criminal Code. [30] When canvassing what was originally described as the odour, being a slight odour of liquor, Constable Thompson indicated thathe thought it was an odour of liquor and it had a bitter sweet smell to it. [31] On cross-examination, he was very candid. He indicated that a number of the usual indicia of impairment were not present withrespect to Mr. Hinds.

He noted, for example, that there were no problems with staggering, no problems with balance. There was nosagging of knees as Mr. Hinds stood. The speech was not slurred; it was intelligible. Mr. Hinds was not belching or hiccupping. Hewas not acting in an untoward manner. There was no profanity. He was very polite. Mr. Hinds' face was not flushed nor was it pale. [32] Crown closed its case. The defence elected not to call any evidence. [33] In submissions, Crown submitted that there was sufficient evidence in order for there to be a conviction with respect to Count1.

Crown noted that no defence evidence had been called to explain the accident or the cause of the accident. Crown pointed to thedriving that had been engaged in by Mr. Hinds on the evening in question, in particular, the concern about Ms. Wakal when she observedthe vehicle approaching her from behind at a very fast speed, the fact that that car then swerved to take evasive action, travelled alongthe median, resulting in the collision with the lamp standard. [34] In Crown's submission, there were only two plausible alternatives for that accident. The first was that the driver, Mr.

Hinds,intended to travel through the intersection and drifted into the left-hand turning lane and then made contact with the median. The secondplausible alternative is that Mr. Hinds intended to make a left-hand turn but failed to notice the stoplight and the vehicle that had stoppedin front of him, thereby resulting in the necessity to take evasive action and to travel on the median, resulting in the collision. [35] The conclusion that I am being asked to draw from the circumstances based on the evidence both immediately prior to thecollision taking place as well as on the basis of the evidence of Mr.

Atleo is that alcohol played a role in the accident and that the alcoholwas a significant factor in the cause of the accident. [36] In Crown's submissions, there is sufficient evidence for the court to presume that Mr. Hinds had consumed alcohol both interms of the detection of the odour on his breath but also based on the prior driving that had been observed by Mr. Atleo. The Crownpoints out that there is no evidence to support a conclusion that the swerving observed by Mr. Atleo was the cause of cell phone use.

Although this is a circumstantial case, Crown submits that the evidence is sufficient in order for the court to conclude that the charges onCount 1 have been proven beyond a reasonable doubt. [37] Defence submissions, of course, take a contrary view. Defence submits that it is not up to Mr. Hinds to provide proof of thecause of the accident.

The burden of proof lies with the Crown who must prove the offence beyond a reasonable doubt. [38] Defence points to the evidence of Police Officer Thompson and, in particular, the fact that although a faint odour of alcohol wasdetected by that police officer, there was no other indicia of impairment. It is suggested that the conditions of Mr. Hinds' eyes, whichwere the subject of the testimony of Police Officer Thompson, could have been the result of the deployment of the airbag. [39] Defence suggests that the evidence of Mr.

Atleo is contradictory and unreliable in the sense of he observed the two incidents ofswerving but was unable to speak in any clarity about the exact location of the second incident. He also is apparently inaccurate whenhe indicates that he observed the vehicle driven by Mr. Hinds becoming airborne as a result of the collision. That was contradicted bythe witness Ms. Wakal who was sitting immediately beside the vehicle when it came into collision with the median to her immediate left. [40] Defence points out that there was no observation by any of the witnesses who were in close proximity to Mr.

Hinds, being Ms.Thoen and Ms. Parsons, as to any indicia of impairment. Accordingly, it is the submission by defence that it would be unsafe to convictMr. Hinds on the charges based on the evidence that has been presented by Crown. [41] Defence has referred me to a number of cases. I will, for the record, provide the names and citations of those cases. The first isR. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.); R. v. Andrews (1996), 1996 ABCA 23 , 104C.C.C. (3d) 392 (Alta. C.A.); R. v. Ryan, [1981] B.C.J. No. 628 (County Court); R. v. Ritchie, [1994] O.J. No. 654 (Gen.

Div.); R. v.Carrie, (ON CJ), [1997] O.J. No. 4053 (Gen. Div.); R. v. Landes, (SK KB), [1997] S.J. No. 785(Q.B.); R. v. Alderson, June 12, 1987, Vancouver Registry No. CC870535 (B.C. County Court); and R. v. Baxendale, November 30,2000, Victoria Registry No. 106618 (B.C.P.C.). [42] The Crown and defence agree that the starting point of any legal analysis of this matter flows from the Ontario Court of Appealdecision in R. v. Stellato. That case went from the Ontario Court of Appeal to the Supreme Court of Canada. The Supreme Court ofCanada dismissed the appeal on June 13, 1994. The decision of Mr.

Justice Labrosse of the Ontario Court of Appeal was adopted by theSupreme Court of Canada. [43] Stellato offers guidance with respect to s. 253 of the Criminal Code.

Section 253 reads as follows: 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or ofrailway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one

hundred millilitres of blood.

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(

a) includes impairment by a combination ofalcohol and a drug. [44] Stellato dealt with the issue of the proof of any degree of impairment that may be required by s. 253. The decision at page 4makes reference to a decision out of the Prince Edward Island Court of Appeal. That is the decision in R. v. Campbell. Their thedecision of Justice Labrosse states as follows: In R. v. Campbell (1991), (PE SCAD), 26 M.V.R. (2d) 319, 87 Nfld. & P.E.I.R. 269, 12 W.C.B. (2d) 155, the PrinceEdward Island Court of Appeal also considered the test for impairment. Without specific reference to McKenzie [see R. v.

McKenzie(1955), (AB KB), 111 C.C.C. 317, 20 C.R. 412, 14 W.W.R. (N.S.) 500], Mitchell J.A., speaking for the court, rejectedthe requirement for a marked departure from normal behaviour. At p. 320, he wrote: The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trial Judge must decideon the evidence. The standard of proof is neither more nor less than that required for any other element of a criminal offence.

Before hecan convict, a trial Judge must receive sufficient evidence to satisfy himself beyond a reasonable doubt that the accused's ability tooperate a motor vehicle was impaired by alcohol. It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive.However; a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired.

Courts must therefore take care when determining the issue not to apply tests whichassume or imply a tolerance that does not exist in law. Trial judges constantly have to keep in mind that it is an offence to operate a motorvehicle while the ability to do so is impaired by alcohol. If there is sufficient evidence before the Court to prove that the accused's abilityto drive was even slightly impaired by alcohol, the Judge must find him guilty. [45] Mr. Justice Labrosse continues at page 5 of his decision to note as follows: The court noted in Smith [being a reference to R. v.

Smith (1992), 1992 ABCA 159 , 73 C.C.C. (3d) 285, 13 C.R. (4th) 125, 37M.V.R. (2d) 9] that if Parliament had intended to proscribe any impairment, however slight, it could have done so. On the other hand, ifParliament had intended to proscribe impaired driving only where accompanied by a marked departure from the norm, it also could havedone so. With all due respect to those who hold a contrary view, it is my opinion that the

interpretation of s. 253(

a) which was advancedin Winlaw, Bruhjell and Campbell is the correct one. Specifically, I agree with Mitchell J.A. in Campbell that the Criminal Code does notprescribe any special test for determining impairment. In the words of Mitchell J.A., impairment is an issue of fact which the trial judgemust decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminaloffence: courts should not apply tests which imply a tolerance that does not exist in law.

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate 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 areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [this paragraph immediately above being referred to below as the “penultimate paragraph”.] [46] The decision in Stellato was considered by the Alberta Court of Appeal in R. v. Andrews. Justice Conrad for the majority notedat page 6 as follows: This case turns upon the meaning of the words in s.253(

b) of the Criminal Code, "while the person's ability to operate the vehicle… isimpaired by alcohol". The trial judge felt that the Stellato decision meant that "slight impairment by the accused at the particular time"was sufficient for a conviction. In applying this as the legal test, he made a critical error. He failed to focus the issue upon the question ofwhether Mr. Andrews' ability to operate a motor vehicle was impaired. Continuing: ...impaired driving can be founded on proof beyond a reasonable doubt of slight impairment of the ability to drive.

If the ability tooperate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked. The courts must not fail to recognize the fine but crucial distinction between "slight impairment" generally, and "slight impairment ofone's ability to operate a motor vehicle". Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one's ability to do brain surgery, or one's ability to thread a needle. The question is not whether the

individual's functional ability is impaired to any degree. The question is whether the person's ability to drive is impaired to any degree byalcohol or a drug. In considering this question, judges must be careful not to assume that, where a person's functional ability is affected insome respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [47] The Andrews case rejects the inference that the Stellato case will sustain a conviction if the impairment proved is slight ratherthan if the impairment of the ability to drive is slight.

In that regard, the Andrews decision indicates that there is a misinterpretation ofthe penultimate paragraph contained within Stellato which I have previously referred to and set out above. [48] In analyzing the penultimate paragraph of Stellato, the decision in Andrews indicates that the penultimate paragraph must beread in the context of the whole judgment and, in particular, with the sentence that starts with the word “Accordingly”, before convicting. [49] The court in Andrews concluded on page 6 that: [T]he subsequent references to the word "impairment" in the paragraph really mean "that impairment" referring to the earlier describedimpairment of the ability to drive.

Otherwise, the pronouncement is not in harmony with the reasons of Mitchell J.A. in R. v. Campbell[citation deleted]. [50] The court in Andrews (having specifically set out the words of Mitchell J.A. in Campbell referred to above in Stellato at page4) then goes on to say at page 7 as follows: Such an

interpretation of the penultimate paragraph in Stellato would also be contrary to the pronouncement of Dickson J. in Graat v. TheQueen (1982), (SCC), 2 C.C.C. (3d) 365, 144 D.L.R. (3d) 267, [1982] 2 S.C.R. 819. The Supreme Court of Canada hasmade it clear that "impaired" in this

section means a certain degree of drunkenness, and not simply any, minimal degree. [51] The conclusion reached in Andrews is found at the bottom of page 7 and reads as follows: Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offenceunder s. 253(a). Nor does it mean any lack of sobriety is sufficient.

This is evident from the approval in Stellato (at p. 383) of the opinionof Mitchell J.A. in Campbell [at page 320] that "It is not an offence to drive a motor vehicle after having consumed some alcohol as longas it has not impaired the ability to drive." Continuing at the bottom of page 7: The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused'sability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

This iswhat the Supreme Court of Canada approved, not that a slight degree of impairment is to be equated to a slight degree of impairment ofone's ability to drive. That would preclude a trial judge in every case from making the crucial finding of whether the accused's ability todrive was in fact impaired. [52] The remaining decisions that defence has referred me to provide an examination of various factual situations. This survey ofcases points to various situations where the usual indicia of impairment were significant and yet there was insufficient evidence for aconviction to be made.

I do not intend to make specific reference to those cases that I have already referred to and which I have also readand considered. [53] In the case before me, I must determine whether or not there is sufficient evidence before me to conclude beyond a reasonabledoubt that Mr. Hinds was, at the time that he was driving this vehicle and, in particular, at the time that he was involved in the accident atthe corner of Highway 17 and Sayward Road, was in fact impaired.

There is an indication that he had consumed some alcohol, althoughbased on the evidence of Police Officer Thompson, it was what he believed to be a faint odour of alcohol and something that he describedas being bitter sweet. I do not have any evidence as to what amounts, if any, of alcohol it would take for there to be a faint odour ofalcohol. I do not have any evidence as to the actual consumption of alcohol by Mr. Hinds. I also do not have much in the way ofevidence that would fall within the characterization of usual indicia of impairment. Mr.

Hinds acted in an appropriate manner with thepolice officer upon the arrival of the police at the scene. There was no concern expressed by any of the witnesses who were immediatelyin the company of Mr. Hinds that he appeared to be impaired and that such impairment was existent at the time that he was driving hismotor vehicle immediately prior to the crash. [54] I do have evidence of driving which is of concern. We have the observations made by Mr. Atleo. Whether his observationswere entirely accurate, he did observe at least two occasions of the vehicle swerving.

It is not clear as to whether that was as a result ofimpairment. The inference that I am being asked to draw by the Crown is that it was. However, Mr. Atleo did not testify that heobserved anything that would approach a continued pattern of inability to maintain the car within the lanes that the vehicle was travellingon the Pat Bay Highway. [55] We do have the evidence of Ms. Wakal of the vehicle driven by Mr. Hinds approaching her at a high speed. It is unexplained asto what caused the vehicle to make an evasive action to the left onto the median in order to avoid striking her.

There are other potentialexplanations that may better explain the cause of the accident, but what I must determine is whether or not Crown has satisfied theburden upon it to prove that Mr. Hinds was impaired as alleged in Count 1 of the information.

[ 56 ] Taking into account all of the evidence before me, I do not find that I can convict Mr. Hinds. I am not of the view that there is sufficient evidence before me to conclude that his ability to drive was even slightly impaired by the alcohol. He did not display indicia that would allow me to conclude beyond a reasonable doubt that he was impaired. There was clearly some cause for the accident. Whether it was his inexperience as a driver, whether it was a distraction, or whether it was some mechanical failure in the car, I need not decide. There was clearly an accident.

There clearly will be civil implications to that accident, but on the whole, there is not before me sufficient evidence in order to conclude that there was impairment of Mr. Hinds' ability to drive at the time in question and, in particular, at the time that the accident occurred. [ 57 ] Accordingly, I will dismiss Count 1 against Mr. Hinds. [ 58 ] That concludes my reasons for judgment. (REASONS CONCLUDED)