Her Majesty the Queen - v. -, 2016 SKPC 133

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 133 Date: October 14, 2016 Information: 30372353 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jordy Peck Appearing: Gary Parker For the Crown Michael Owens For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr. Peck was charged on February 14, 2016 with operating a motor vehicle while his blood alcohol content exceeded the legal limit and with driving while his ability to operate a motor vehicle was impaired by alcohol. The accused asserts violations of his s. 8, 9 and 10(

b) rights pursuant to the Canadian Charter of Rights and Freedoms . The trial of the matter proceeded as a blended trial and voir dire with agreement that all admissible Crown evidence on the voir dire would be applied to the trial proper. The evidence of the accused applied to both the voir dire and trial.

[ 2 ] The issues with respect to the voir dire are: (

i) Were there violations of s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms ? (ii) Was there a violation of s. 10(

b) of the Charter ? and (iii) Should the Certificate of Qualified Technician be excluded after an analysis pursuant to s. 24(2) of the Charter ? Voir Dire (

i) Were there violations of s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms ? [ 3 ] Sergeant Keith Meckleburg has been a member of the Saskatoon Police Service for over 17 years and a breath technician for 15 and one-half of those years. He estimated that he has conducted approximately 500 breath tests.

He is also a qualified trainer with respect to the approved screening device and regularly deals with people under the influence of alcohol in the course of his duties. [ 4 ] On February 14, 2016, at approximately 11:33 p.m. he was on patrol when he observed a black truck go through a stop sign at approximately 40 to 50/kph. The vehicle slowed at the next intersection and appeared to start a left turn. It then stopped and very slowly completed the left turn. Sergeant Meckleburg continued around the block and stopped facing the direction that the truck had turned.

He saw it come toward him, make a U-turn and park legally along the curb. As the driver, who was the sole occupant of the vehicle, got out, Sergeant Meckleburg saw him “side shuffle” to the right. This person was later identified as the accused. He then walked diagonally across the street toward a business establishment known as the Copper Mug. As the accused came toward him, Sergeant Meckleburg approached with the emergency lights activated. The accused met him as he got out of the patrol car. The officer asked the accused for his driver’s license; it took three requests before he was able to obtain it.

He also asked if he had been drinking as he noted beverage alcohol on the breath of the accused. The accused appeared quite remorseful for his behaviour when accused of drinking and driving. He acknowledged that “it was stupid” and that his girlfriend would be angry. [ 5 ] Sergeant Meckleburg had an Approved Screening Device (ASD) but chose not to use it.

Based on the circumstances that the accused seemed uncertain as to what he was doing, that he sidestepped getting out of his vehicle and fumbled as he walked, coupled with the smell of alcohol and his admission that he had been drinking, the Sergeant formed the belief that the accused was impaired by alcohol and that his blood alcohol level was over the legal limit. It was his opinion that this was more than a reasonable suspicion that the accused had alcohol in his body. [ 6 ] He met the accused at 11:36 p.m. and placed him under arrest at 11:38 p.m.

Rights to counsel and the police warning were read at 11:38 p.m. and the accused said that he understood. He was then placed in the back of the police vehicle and told that he would be video and audio recorded. They remained at the scene for a few minutes while the officer did some data entry and arranged for other police officers to seize the truck. They then travelled to the detention area of the Saskatoon Police Service, arriving there at 12:18 p.m. [ 7 ] In cross-examination, Sergeant Meckleburg confirmed that he had forgotten his body mike and only realized it while he was dealing with Mr.

Peck; thus his interaction with the accused outside the police car was not audio-recorded. He estimated the speed of Mr. Peck’s vehicle at 40 to 50/kph as it went through the stop sign. He agreed that the truck was travelling very slowly when it made a U-turn and described the road conditions as “unremarkable” although he had no notes to that effect. He acknowledged that the accused parked appropriately and did not recall the accused having any problems getting out of his vehicle. He saw the accused do a little bit of a shuffle and described his walk as “not the standard gait”.

He acknowledged that the video from his police vehicle (D-1) was accurate for what it captured. After watching the video between 23:34:04 and 23:43:07, he agreed that the streets were snow covered and other vehicles were moving slowly and that the video did not show the accused having any difficulty walking. He went on to explain that the video did not capture the manner in which the accused walked in the previous block. He, however, had seen a little stagger to the right or

a side step as the accused started forward. The video only captured the accused when he was a street-width away. He smelled alcoholon the breath of the accused when they were face to face in conversation but was not aware of the accused’s glassy eyes or slurredspeech before he was arrested. He agreed that the accused did not sway as he stood in front of the patrol car camera; nor did he see anybalance issues when the accused was walking or getting into or out of the police car; nor did he demonstrate any problems with balanceor dexterity at the detention centre.

The more time he spent with the accused, the more pronounced the “speech cadence and repetition”of words became. He admitted that the accused pronounced words well and that impaired speech was not part of the basis for thedemand. Rather, he relied on the strong odour of alcohol and the manner of driving.

Although the accused’s vehicle was neither weavingnor speeding, he relied on the fact that the accused stopped mid-block with his foot on and off the brake and appeared hesitant in hisdriving actions. [8] His decision to make a demand for a breath sample was part and parcel of his decision to arrest the accused for impaireddriving. By 11:36 p.m., he had concluded that the demand should be made. [9] The accused testified that on the evening of February 14, 2016, he was at home tiling his bathroom. His intention was topick up his girlfriend at an establishment that is a short distance from his home, at 11:00 p.m.

Before leaving his house, he had two beer,one at about 10:00 p.m. and the second about half an hour later. He described the roads as ice-packed since it had rained and thensnowed. [10] At the stop sign, he applied the brakes but started to slide. He was going about 10 to 15/kph as he slid half way into theintersection; he then just continued on his way. At the next street, he cautiously made a left turn while looking for somewhere to park. He signalled his turn and then made a U-turn to park across the street from his destination. He got out of his vehicle and walked at anangle across the street.

He did not recall stumbling and believed that he walked “totally fine”. He saw the officer engage the patrol caremergency lights and approach him. In court, he watched the video taken from the in-car camera and believed that it depicted himwalking normally and in the same manner that he walked the entire way from his truck. [11] In cross-examination, the accused maintained that he had only two beer and acknowledged that the breath test results werehigh.

He believed that he was completely sober and had his wits about him. [12] Counsel for the accused asks the court to find that the grounds for the demand pursuant to s. 254(3) of the Criminal Codecannot be verified objectively as Sergeant Meckleberg’s evidence is unreliable.

Crown counsel submits that the Court should rely on thebroad experience of the officer and the grounds that he enunciated for his demand. [13] In this case, there is no dispute that, at the time of the demand, the officer held an honest, subjective belief that he hadreasonable grounds to require that the accused provide samples of his breath for analysis. The question is whether that subjective beliefcan be verified objectively.

The objective component is met when a reasonable person, placed in the position of the officer would beable to conclude that there were reasonable grounds for an arrest: see R v Storrey, (SCC), [1990] 1 SCR 241 para 17; Rv Gunn 2012 SKCA 80 , 2012 SJ No 503 at para 8. The test is whether, objectively viewed, there are reasonable grounds tobelieve that the ability of the accused to operate a motor vehicle is even slightly impaired by alcohol: see R v Stellato (1993), (ON CA), 78 CCC (3d) 380; R v Bush, 2010 ONCA 554; Gunn (supra) at para 9.

Although the standard of reasonablegrounds is greater than that of reasonable suspicion, it does not require that the Crown establish a prima facie case for conviction (see Rv Shepherd, 2009 SCC 35) or to establish those grounds to a standard of proof beyond a reasonable doubt (see R v Bush, 2010 ONCA554).

A reasonable suspicion deals with possibilities rather than the probabilities required by the reasonable grounds standard: see R vChehil, 2013 SCC 49 at para 28; R v Mckenzie, 2013 SCC 50 at para 74; R v Yates, 2014 SKCA 52 at para 32. [14] After a careful review and consideration of the evidence, this Court is of the view that the grounds upon which the officerrelied cannot objectively sustain the demand that was made. I am satisfied that the evidence establishes a reasonable suspicion that theaccused had alcohol in his body, but falls short of the reasonable grounds standard.

Although the officer honestly believed that the abilityof the accused to operate a motor vehicle was impaired by alcohol, it is incumbent upon him to articulate the basis for that belief so thatthe Court can make an objective determination of whether the circumstances specified are capable of supporting the inference ofimpairment ( see: Gunn at para 15).

Innocent or innocuous explanations for the actions demonstrated do not necessarily render theofficer’s conclusion to be invalid; however, as was stated in Gunn at para 23: This is not to say that the availability of other rational inferences is irrelevant; rather, the fact that innocent or innocuous inferences maybe rationally drawn from the circumstances may, depending on the soundness or cogency of those inferences serve to undermine or

reinforce the reliability of the inference of impairment drawn by the officer... [ 15 ] In this case, Sergeant Meckleberg testified that he relied on the following grounds: (

i) the accused seemed uncertain as to what he was doing (in reference to the left turn); (ii) he sidestepped getting out of his vehicle and fumbled as he walked; and (iii) he smelled of alcohol and admitted that he had been drinking. The Court finds itself in a position of not being able to rely on the officer’s evidence in relation to the manner of walk; this evidence is inconsistent with what is depicted in the video as the accused approached the patrol car and with the officer’s testimony that the accused had no problem with balance or dexterity.

Further, although he relied on the slow manner that the accused made his left turn, this did not take into account the poor road conditions, also depicted on the video. Under these circumstances, the smell of alcohol and the driving supports a suspicion that the accused had alcohol in his body, but it does not reach the higher standard of reasonable grounds. Accordingly, the Court finds that the detention was not justified and the subsequent breath samples were not lawfully obtained. (ii) Was there a violation of s. 10(

b) of the Charter ? [ 16 ] Sergeant Meckleberg testified that the accused was read his rights to counsel at 11:38 p.m. He initially said that he did not want to call a lawyer, then said he did and then asked the officer whether he should contact a lawyer. Once they arrived in detention at 12:18 a.m., the accused was booked, his property removed and again asked whether he wished to call a lawyer. He said he wanted to call his lawyer.

The officer initially testified that the accused located the business phone number for his lawyer, Nolan Courteau, but later said that he did not recall where he obtained the number that was dialled. The officer controlled the telephone; the accused was not able to dial. A message manager was reached but the officer did not recall if the number was dialled twice in order to allow the accused to hear the outgoing voice message. When asked to describe the nature of the message left for the lawyer he said that it was simply a notification that the accused was at the police station and the reason for his arrest.

A phone number for detention was also left on the message, but the call was not returned. [ 17 ] The accused was told that his lawyer was not available, likely because of the time of night, and was asked if he wanted any other lawyer. He said no. The accused was told that if he wanted to call a lawyer at any time, he should just let the officer know. At 12:38 a.m., the Prosper warning was read to ensure that the accused understood that he had the right to speak to a lawyer. The accused was clear that he did not wish to speak to any lawyer but his own.

As that could not happen, he was taken to the holding room to commence an observation period. Constable MacNeill introduced herself as the breath technician at 12:41 a.m. and read to the accused the secondary warning. The accused was asked whether he would provide two samples. [ 18 ] When the breath technician arrived, the accused again stated that he wanted to call a lawyer. Sergeant Meckleburg testified that the accused then chose to speak to Legal Aid and, at 12:46 a.m., a call was placed to duty counsel, John Hardy. That call concluded at 12:49 a.m.

At the conclusion of the call, the accused was asked if he was satisfied and he replied “absolutely”. He was asked if he wanted to call any other lawyers; he said no. [ 19 ] In cross-examination, Sergeant Meckleberg confirmed that the accused initially said he did not want to call a lawyer, then said that he did. When asked if the accused was firm about calling a Nolan Corteau, the officer opined that the accused wavered. He then agreed that it was clear that the accused wished to speak to Nolan Corteau. The officer had no recollection whatsoever as to where he obtained the 652-9422 number that he called.

He could not explain why the SaskTel phone books for the years 2014/2015 and 2015/2016 provided a completely different phone number for Nolan Corteau. When shown those two phone books, he acknowledged that they also listed a cell phone number for Mr. Corteau. He admitted that he did not dial either of the phone numbers for Mr. Corteau shown in the phone books. He could not recall if there was a phone book in the room in which the accused was placed.

He did not recall the content of the out-going message on the message manager for 652-9422, nor did he recall whether he or the accused left the message to which he had referred in-chief. He speculated that he might have told the accused that he could not get hold of his lawyer. When asked why the accused would agree to call Legal Aid, the officer replied that Legal Aid was an option from the outset but agreed that the accused was adamant throughout that he wished to speak to a specific lawyer, Nolan Corteau.

When asked why the Prosper warning was read Sergeant Meckleburg said because he could not get hold of the counsel of choice and was being cautious. [ 20 ] The accused testified that within three minutes of his arrest, he was asked if he wished to speak with a lawyer; he said he did, and named Nolan Corteau who is a friend. He did not know his cell or home numbers. At the police station, he was placed in a holding cell containing a table and was asked a number of questions. There was no telephone in the room.

He voiced his desire to call a lawyer on several occasions and became frustrated when the officer continued asking questions. He then was taken to a room with a phone and told the officer the name of his lawyer. Although the officer left a message, he ( the accused) never heard the outgoing message. He

did not know where the officer got the number that was dialled as he (the accused) did not give it to him. He did not see a phone book inthe room, nor was he given any list of lawyers. When the officer hung up, he was told that the lawyer was not answering the phone. Hedid not want to speak to any lawyer other than Nolan Corteau. The officer told him that he could not speak to Mr. Corteau as he was notanswering his phone. He reiterated his wish to speak to Nolan Corteau and told the officers that.

He was told Legal Aid was his onlychoice and after he spoke to Legal Aid, he was told that he had to give breath samples. [21] In cross-examination, he acknowledged that he spoke to John Hardy but denied that he participated in the conversation. Rather, Mr. Hardy did the talking. When asked if he told the police he wanted to call Legal Aid, he could not remember but thought thatwas his only option. When it was put to him that he must have said something to the police to trigger a call to Legal Aid, he said he“wavered because he wanted to talk to a lawyer”.

He agreed that no police officer ever told him that his only choice was Legal Aid. Heknew that the officer left a message for Mr. Corteau. He did not call any other lawyer because he did not have a phone number. He didnot ask Mr. Hardy to get hold of Mr. Corteau and when asked if he told the officer that he was “absolutely” satisfied with his call toLegal Aid, he agreed.

He did not recall whether he was asked if he wanted any further calls and agreed that he did not ask for hispersonal cell phone on which he could search for phone numbers. [22] Counsel for the accused submits that Sergeant Meckleberg did not provide the accused with a reasonable opportunity nor didhe assist him in any way to contact his counsel of choice.

Counsel for the Crown concedes that the officer’s evidence was problematicbut asserts that any violation is merely technical. [23] It has been well-established that the right to consult counsel includes the right to consult a lawyer of the accused’s choice, thatan accused person must be given a reasonable opportunity to exercise that right, and that the police are to refrain from eliciting anyevidence until that reasonable opportunity has been given.

Here, the evidence is clear that the accused named a specific lawyer from theoutset, that he repeatedly voiced his wish to call that particular person and that he did not have use of a telephone, except through theofficer. The undisputed evidence is that the officer dialled one telephone number that differed from the telephone numbers listed in thephone book for the accused’s counsel of choice and that he could not say where he obtained the phone number that he did dial.

SergeantMeckleberg also testified that he told the accused that his lawyer of choice was not available and that the accused advised that he did notwant anyone else. The officer then told the accused that “was not going to happen” and did not make any further effort or engage in anyfurther discussion with the accused about it. The accused says that he did not hear the outgoing voice mail message at the number theofficer dialled, nor did he leave a message; rather, the officer left a message. The officer could not provide any detail about how theaccused ultimately chose to speak to duty counsel.

On the other hand, the accused categorically states that he was not provided with aphone book or a list of lawyers and that he believed that legal aid was his only option. [24] The Court has carefully reviewed the evidence and the following cases with respect to the implementation of s. 10(b): R vWillier, 2010 SCC 37; R v McCrimmon, 2010 SCC 36; R v Edginton, 2010 SKQB 381; R v Thall 2014 SKQB 412; R v Yacyshyn 2014SKPC 36 , 2014 SKPC 036; R v Brouillette 2009 SKQB 422; R v Larson, 2015 SKCA 143. [25] Having done so, I cannot conclude that the accused was given a reasonable opportunity to contact his counsel of choice basedon one phone call to a phone number that was not listed to that counsel.

The accused did not have the ability to dial a phone and there isno evidence to suggest that he had a phone book or a list of lawyers to peruse. Even though it was after midnight and it was reasonablefor the officer to suggest that most lawyers do not answer their business phones at that hour, it is clear that the lawyer of choice had a cellphone listed. There is no evidence that the accused was given an opportunity to look for further contact information, and affirmativeevidence from him that he was not. This does not constitute a reasonable opportunity to contact counsel of choice.

Although peaceofficers are not required to be “mind-readers, babysitters, or advocates for detained persons” (see Thall at para 44), they are obliged toensure that an accused is given a reasonable chance to speak to a lawyer of their choosing. That has not been demonstrated by theevidence before me. Although the accused ultimately spoke to duty counsel, he believed it was his only choice. The officer could sayonly that the accused “chose” to call legal aid but could provide no detail as to how he came to make that choice.

Accordingly, I am ofthe view that the accused has established, on a balance of probabilities, that his s. 10(

b) right was violated. (iii) Should the Certificate of Qualified Technician be excluded after an analysis pursuant to s. 24(2) of the Charter? [26] Counsel for the accused asserts that in the event that the Court finds any Charter violation, the appropriate remedy isexclusion of the Certificate of the Qualified Technician. Crown counsel argues that there was no breach of s. 9 and that any breach of s.10(

b) is a technical breach that does not warrant exclusion since the accused had the benefit of legal advice from duty counsel beforebreath samples were obtained.

[ 27 ] With respect to the first ground of the analysis set out in R v Grant , 2009 SCC 32 , the Supreme Court of Canada directed that the more serious the breach and the nature of the state misconduct, the more likely the courts will disassociate from that conduct by excluding the evidence obtained in violation of the Charter . Here, the officer was unable to articulate reasonable grounds for his detention and arrest of the accused resulting in an arbitrary detention and an unlawful seizure of evidence.

Further, the implementation of the right to counsel was performed in a perfunctory manner and seems to indicate that the officer either has a simplistic understanding of his obligations in that regard or made a choice to perform his responsibility in the most superficial way. The compounding of violations increases the seriousness of these violations and a consideration of this aspect would tend to favour exclusion of the evidence. [ 28 ] Secondly, the effect of the Charter-infringing conduct on the accused must be considered.

Although the accused testified that he only trusted the advice that he would have received from a lawyer that he knew, the evidence is also uncontradicted that he told the officer that he was “absolutely” satisfied with the advice that he got from duty counsel before providing samples of his breath. Thus, a violation of his s. 10(

b) right cannot be said to have had a serious impact. However, the accused was detained for a number of hours on the basis of questionable grounds. This is a significant effect on the accused, and a consideration of this arm also would suggest exclusion of the evidence. [ 29 ] The third line of inquiry enunciated in Grant centers on society’s interest in having criminal cases adjudicated on their merits. The question is whether “ the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”: see Grant para 79 .

The reliability of the evidence and its importance to the prosecution are relevant and, as was pointed out in Grant , the results of breath samples are generally considered reliable and their exclusion would end any prosecution for driving over the legal limit: see Grant at paras 99-110 incl. Given the on-going toll that drinking and driving continues to take on individual lives and on the community, particularly in this province, societal interest in pursuing these prosecutions is high.

This factor would militate toward admission of the evidence. [ 30 ] In spite of the overwhelming public interest in prosecuting those who drink and drive, the Court must always ensure that the police adhere to the letter and the spirit of the Charter . I am not satisfied that the officer did so in this particular case and, ultimately, the admission of evidence under these circumstance would result in the administration of justice being held in disrepute. It is the view of the Court, that under all of the circumstances, the Certificate of the Qualified Technician should be excluded from evidence.

Trial [ 31 ] The issues to be determined on the trial are: (

i) Has the presumption of accuracy set out in s. 258(1)(

c) been rebutted? ( ii) Has the Crown proven the offence of driving while over the legal limit? and (iii) Has the offence of impaired driving been established to the standard of beyond a reasonable doubt? (

i) Has the presumption of accuracy set out in s. 258(1)(

c) been rebutted? [ 32 ] Counsel for the accused submits that the Crown has not proven that the accused was continuously and closely observed prior to, and in-between, the breath tests so as to satisfy the court that no mouth alcohol was present at the time breath samples were taken.

He relies on the decision of R v By 2015 SKQB 86 which held that a failure to do so amounts to an absence of evidence that the instrument used was properly operated and this failure rebuts the presumption of s. 258(1)(c). [ 33 ] In-chief, Sergeant Meckleberg offered little evidence on this point except to say that he stopped the observation period while the accused spoke to duty counsel and resumed it at 12:49 a.m. at the conclusion of the call. In cross-examination, Sergeant Meckleburg

said that between 12:49 a.m. and 1:13 a.m. he spent 30 to 50% of the time writing notes. He agreed that it was important to be vigilant inhis observation of the accused to ensure that there was no mouth alcohol. He maintained that he could continue to observe by using hiseyes, ears and nose but acknowledged that an individual could burp discreetly and unnoticed. Between 1:13 a.m. and 1:36 a.m. he didnot write too many notes; the bulk of his notes were prepared with the check sheet that consumes the majority of his time.

He did notrecall whether he had left the room between 12:49 and 1:36 a.m. [34] The accused testified that he was in a room by himself before Sergeant Meckleburg came back with papers. The officer leftthe room on about three occasions for a total of about five minutes. The accused did not recall whether he had burped, belched orvomited in that time. He also indicated that the officer left the room between the first and second tests and did not call anyone to watchhim. On this occasion he left one or two times for a total of about two or three minutes.

Although he did not recall whether he burped,belched or vomited he knew he did not throw up. [35] Based on the evidence before this Court, I am satisfied that the accused was not under constant observation in the 20 minutespreceding the first test or in the 15 minutes between the tests. However, this Court is not prepared to make any ruling in relation to thisfor two reasons. First, and for the benefit of counsel, this issue is under appeal to the Saskatchewan Court of Appeal and is scheduled tobe argued on October 5, 2016.

Second, my findings with regard to the Charter render this argument moot. (ii) Has the Crown proven the offence of driving while over the legal limit? [36] As the Certificate of the Qualified Technician was excluded, there is no evidence before the Court as to the alcoholconcentration in the blood of the accused.

That being so, the Crown has failed to prove its case and the accused is found not guilty ofdriving while over the legal limit. (iii) Has the offence of impaired driving been established to the standard of beyond a reasonable doubt? [37] With respect to the remaining count of operating a motor vehicle while his ability to do so was impaired by alcohol, the Courtis mindful of the test set out in R v Stellato, (ON CA), [1993] OJ No 18 (CA), affd (SCC), [1994] 2SCR 478 (SCC).

In determining whether the offence has been established, the Court must be satisfied, beyond a reasonable doubt, thatthe ability of the accused to operate a motor vehicle was impaired to some degree by his consumption of alcohol. The evidence, taken asa whole, must establish that such an inference can be drawn reasonably from conduct which is a departure from the norm.

This departuremay fall upon a continuum from slight to great, but it must lead to no other inference but that the ability of the accused to operate avehicle was impaired to some degree by the consumption of alcohol. [38] In the case at hand, the evidence of the officer depicts the accused as displaying only minimal symptoms of impairment at thetime of the stop. Certain symptoms such as glassy eyes and slurred speech became obvious only at the police station.

He did not see anyproblems with balance when the accused was getting out of the patrol car, nor did he have any problem with balance and dexterity in thedetention centre. However, as time wore on, he noted the accused to be talkative, and repetitive and would sometimes be difficult tofollow in conversation. He also displayed mood swings. The officer opined that, at the police station, he considered the accused to bemore grossly impaired than he initially thought. [39] The accused testified that he had no difficulty with balance or dexterity. In his view, alcohol had not affected him or hisability to drive.

Sliding through the stop sign was the result of snow-covered and slippery road conditions. He further explained that as aresult, he was more cautious in approaching the next intersection and may have appeared hesitant as he was searching for a parkingspace. [40] Having carefully reviewed and considered all of the evidence and the able arguments of counsel, I find that I have areasonable doubt as to whether the ability of the accused to operate a motor vehicle was impaired, even slightly, by the consumption ofalcohol or whether the driving demonstrated was the result of the state of the roads.

Accordingly, the benefit of the doubt must go to theaccused and he is found not guilty of impaired driving.

__________________________ M. L. Gray J.