) ) HER MAJESTY THE QUEEN ) Donovan Dvorak ) for the Crown - v. - ), 2012 MBPC 20

2012 MBPC 20 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Donovan Dvorak ) for the Crown - and - ) ) CHRISTOPHER JOHN MORIAUX ) Josh Weinstein ) for the Accused Accused. ) ) Judgment Delivered: ) February 22nd, 2012 ) C. HARAPIAK, P.J. [1] Christopher John Moriaux was stopped by an RCMP officer and charged with driving over .08 and driving impaired on May 13th, 2007. [2] The Certificate of Analysis resulting from breath testing was accepted into evidence on August 24th, 2011 after a s. 8 Charter voir dire.

Final arguments were received October 24th, 2011. [3] As a result of presumptions contained in the Criminal Code the test results are deemed to be conclusive proof of theaccused’s blood alcohol content (“BAC”) both at the time of testing and at the time of driving unless there is evidence tending to showthree things – in brief, the instrument was malfunctioning or operated improperly, this resulted in the over 80 reading, and the BACwouldn’t have been over 80 at the time of the offence. [4] There are two issues for the court today

i) whether these three things have been shown and the presumptions of accuracy and identity overcome; and ii) whether Mr. Moriaux was driving impaired. THE LEGISLATION [5] Prior to July 2nd, 2008 a person accused of drive over or drive impaired in Canada could tender evidence of their alcoholconsumption and expert evidence indicating the likely level of alcohol in their blood to rebut the presumed accuracy of breath test results.(R. v. Carter (ON CA), [1985] O.J. No. 1390 (CA)).

[ 6 ] The Carter defence, as it came to be known, was fundamentally altered by the passage of Bill C-2. [ 7 ] Now, as noted above, the accused must tender evidence tending to show all of the following - “that the approved instrument was malfunctioning, or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed.” (s. 258(1)(

c) CCC) [ 8 ] The Criminal Code specifically excludes using evidence of the accused’s consumption of alcohol or a calculation based on that evidence to show that the approved instrument was malfunctioning or operated improperly. (s. 258(1)(d.01) CCC) THE EVIDENCE Consumption [ 9 ] Mr. Moriaux testified about his consumption of alcohol. He advised he had been in Ste. Rose the evening before visiting with his cousin. He had supper - a hamburger and fries and three or four glasses of milk. After the meal he and his cousin decided to split eight standard size cans of regular strength beer.

From 6:30 to 8:30 pm Moriaux says he consumed four beer at half hour intervals. After 8:30 he had nothing to drink, according to his testimony, and left Ste Rose about 1:15 am. The Traffic Stop [ 10 ] It is undisputed that Mr. Moriaux was travelling slowly and that he left his lane of traffic and crossed completely into the other lane and back again just prior to the stop. He indicated he did this as he thought about going to 7-11 and then changed his mind when he noticed the police car behind him.

He also testified that he signaled his intention to change lanes when going back into his own lane. [ 11 ] The officer’s first impressions were that Mr. Moriaux had watery eyes, a slight smell of what he perceived to be fresh alcohol on his breath and slow speech. [ 12 ] When asked for his name Mr. Moriaux gave his cousin’s name and his own birthdate.

He testified that he was confused and thought the officer wanted to know the usual driver of the vehicle. [ 13 ] The officer, after running police checks which returned the name of Christopher John Moriaux, a lifetime suspended driver, connected to the birthdate provided, confronted the accused about his identity. [ 14 ] Mr. Moriaux admitted who he was and was arrested for driving disqualified. After being chartered and cautioned he said “you caught me. I can’t apologize and I can’t change what’s done, you caught me.” [ 15 ] The Constable then arrested Mr.

Moriaux for driving impaired, chartered and cautioned him. A breath demand was made and Mr. Moriaux was transported to the local RCMP detachment. At the Detachment [ 16 ] The Constable observed Mr. Moriaux’s walking and turning ability to be fair. He didn’t require assistance, but he wasn’t completely sure on his feet and wasn’t walking in a straight line. [ 17 ] Upon arriving at the detachment Mr. Moriaux used some profane language and made fun of the other prisoners already lodged in cells. He was otherwise noted to be cooperative.

[ 18 ] Mr. Moriaux testified that a prisoner in a nearby cell was making noise and interfering with his ability to concentrate so he told him to “shut the fuck up.” The Breath Test [ 19 ] A second officer administered the breath test. He noted Moriaux started and stopped blowing before giving acceptable samples and was biting the mouthpiece. The tests were administered within two hours of the stop, the last being at 2:56 a.m. The second test began 18 minutes after the first one. The results of the two samples were 170 and 180. At the end of each test the breath technician took the breath tube away from Mr.

Moriaux and removed the mouthpiece.

There was then an ambient fail recorded when the Datamaster tried to purge itself with room air after the collected sample. [ 20 ] The breath technician testified that, according to his training, in the event of an ambient fail at the final stage that the sample is valid but the system must re-purge itself, so the Datamaster closes the file and the “tombstone” data (ie name, birthdate, driver’s license, etc.) is re-entered. [ 21 ] The breath technician, after observing the ambient fail, “tried to get better air circulation within the room itself, [and] further distance between the instrument and the subject.” [ 22 ] The breath technician made some observations about Mr.

Moriaux at the time of the testing. He noted a smell of liquour on his breath, a flushed face, a dry pasty film inside his mouth, bloodshot and watery eyes and good speech. [ 23 ] The breath technician agreed that his observations could be indicative of alcohol consumption, and not necessarily impairment. He also testified that, over the 288 breath samples he’s collected, this is the only time he’s seen two ambient fails in a row.

He was not aware of any requirement to start a new operational check sheet after an ambient fail. [ 24 ] Ambient fails, according to the breath technician, could be caused by a poorly ventilated room, a used mouthpiece left on the breath tube or the subject being too close to the breath tube.

EXPERT EVIDENCE [ 25 ] Gertrude Patricia Lehmann , RCMP Forensic Alcohol Specialist, testified on behalf of the Crown. [ 26 ] Ms Lehmann described the process that the BAC Datamaster C is required to go through to determine blood alcohol content (areas where possibilities of malfunction ) and the operational requirements of the breath technician (areas where possibilities of improper operation ). As these issues are critical in a s. 258(1)(

c) analysis I will review Ms Lehmann’s evidence in some detail.

Preparatory Steps [ 27 ] The accused is observed for a minimum period of 15 minutes to make sure nothing that could cause a choking risk is placed in the mouth, no alcohol is consumed and the subject has not burped or vomited up stomach contents which could result in mouth alcohol and artificially elevated readings. [ 28 ] The technician has to ensure the simulator attached to the instrument is between 33.8 to 34.2 degrees Celsius and the propeller is on. [ 29 ] The external standard solution in the simulator is then checked to ensure it is suitable for use. [ 30 ] The breath tube must be warm and connected to the instrument.

The date, time and simulator counter must be checked. If the simulator counter exceeds 50, the instrument will lock the technician out.

[ 31 ] Once these preparatory steps are completed, the technician hits run and the instrument provides data prompts. This is when the individual’s identifying data, driver’s license and incident date and time are entered into the machine by the technician. The data and appropriate temperature range are both confirmed by the technician as accurate, and then the instrument becomes automated in its operation. Automatic Operation - First Blank Test [ 32 ] At this point the instrument will go through ambient testing.

According to Ms Lehmann the purpose of this first “zeroing” of the instrument is to use room air to determine that there is no alcohol in the breath test chamber – that it is ready to receive the alcohol standard test. The instrument looks for a reading of zero, one or two. If it is unable to do that it will read ambient fail. [ 33 ] If the first ambient test failed, according to Ms Lehmann, the instrument would abort the test and the technician would have to initiate another purge by starting the test again. On both evidence tickets in this case the first blank test resulted in a zero reading.

In Ms Lehmann’s opinion an instrument that repeatedly failed on the first purging may mean there is an unstable detector. [ 34 ] Ms Lehmann’s opinion was that these results meant that the breath test chamber was clean at this point. Internal Standard [ 35 ] There is a quartz plate that is placed into the infrared energy source which simulates an alcohol standard by use of a physical barrier. This test is to ensure that the calibration of the machine has remained stable within 10 per cent of the calibration factor for this physical barrier stored in memory in the instrument.

If the calibration hadn’t remained stable there would be a calibration error message. The message here, on both evidence tickets, was verified. Ms Lehmann advised that the test would abort if the reading was not verified and the breath test could not be taken from the subject. External Standard [ 36 ] Ms Lehmann testified that the external standard is the most critical of all quality assurance checks because it determines whether the instrument is in proper working order. The instrument pumps alcohol vapour from a standard alcohol solution through the simulator into the breath chamber.

It is a simulation of a breath sample where you have a known and expected result. The expected result is 100 and the margin for acceptability is between 90 and 110. Here, the result, in both tests, was 100. In Ms Lehmann’s opinion that means this instrument was providing accurate results. Second Blank Test [ 37 ] As this alcohol-laden air must be purged out of the breath chamber the instrument goes through another purge cycle. If the air could not be purged you could get another ambient fail at this point.

This is a critical purge, according to Ms Lehmann, as the breath chamber must be clean to accept the subject’s sample. In both evidence tickets the result of this blank test is zero. In Ms Lehmann’s opinion these tests, cumulatively, indicate that the instrument was functioning properly and was ready to receive a sample. The Sample [ 38 ] The instrument then flashes the message please blow and the breath technician directs the breath test subject to provide a sample into the mouthpiece.

The subject has approximately two and a half minutes to provide a sample failing which the instrument will query the technician as to whether there is a refusal. [ 39 ] The two breath samples must agree within 20 milligrams per cent of each other or there will be concern about the quality of one of the breath samples. The two tests at the case at bar are within 10 milligrams per cent of each other. Third Blank Test [ 40 ] The third blank test is needed to purge out the breath chamber and leave it clean for the next test.

Ms Lehmann advised that, in pre-Datamaster days, when the Breathalyzer was used the purge was not even recorded as part of the testing process because “it’s not important.”

[ 41 ] According to Lehmann, “not every status message is a critical status message. For instance, invalid, it just means that there was a negative slope in the breath alcohol profile; it doesn’t mean that the instrument isn’t working properly. Pump error, may mean there’s a block in the breath tube that needs to be removed, cause sometimes they have plastic from the breath tube that is lying around. So you have to look at the status message and determine whether or not it’s critical.

Just because you have an ambient fail on the final purge, certainly to me, does not indicate that the breath test result isn’t valid at all.” This is consistent, according to Ms Lehmann, with current training across Canada. [ 42 ] Ms Lehmann’s view is that any instrument malfunction should manifest itself prior to the final stage in the breath test sequence. [ 43 ] In fact, Ms Lehmann authored a memo in 2006, at the request of the National Breath Test Coordinator, which was distributed to all RCMP members indicating that test results calculated prior to a final ambient fail are valid. [ 44 ] Ms Lehmann agreed that an ambient fail at the final purge should be investigated by the officer, and attempts made to address it, such as was done in this case – bringing a fan in and moving the subject further away from the instrument. [ 45 ] Commencement of a new evidence ticket is prompted by the instrument once an ambient fail is obtained, which happened here, and a new operational check sheet should be started, which was not done here.

Essentially, the officer followed the correct testing procedure, but not precisely the correct paper work procedure. Ms Lehmann was of the view this would have no impact on the validity or accuracy of the samples. [ 46 ] Dr. Kraut - Dr. Arthur Kraut, former head of the R.C.M.Police Forensic Lab in Winnipeg was called by the defence as an expert witness. Dr. Kraut has been retired since 2002 and acknowledged that his testimony largely related to training, policies and protocols from this era. [ 47 ] Dr. Kraut agreed with Ms Lehmann’s explanation of the manner in which the instrument operates and purges itself.

He disagreed that an ambient fail on the last purge could result in a valid and usable test result. [ 48 ] Dr. Kraut’s opinion is that the analysis of a breath sample is to be done within a breath test sequence, of which the final purge is an essential component. [ 49 ] In Kraut’s view if a breath technician attends to possible environmental factors after a first ambient fail (moving the subject away from the machine, bringing a fan into the room, moving the machine into another room) and there is another ambient fail this might be caused by environmental factors or by internal problems with the Datamaster.

The results cannot be relied upon. He also admitted that he’s “not that technical” and “is not an expert in the inner workings of the Datamaster.” CASE LAW [ 50 ] Counsel provided three cases for consideration. [ 51 ] R. v. Powichrowski ( 2009 ONCJ 490 ) was an unsuccessful constitutional challenge to the new legislation in a care and control case.

Proper procedures were followed and the machine functioned properly, so it is of limited use in applying the section. [ 52 ] The court, however, found that “the new subsection does not require separate attacks or doubts to be raised under each [of the three] heading[s], considered separately.” This comment has been considered in subsequent cases when attempting to apply the three factors.

The court in Powichrowski found it key in determining constitutionality of the section, that “if material malfunction or error is shown (or doubt raised) there would then be no reliable evidence of BAC in the case at all and necessarily a doubt would also have been raised as to the accused being over 80 at the time of the offence.” [ 53 ] In R. v.

Vardy ([2010] ONCJ 255) the accused challenged the breath test results with an expert’s concerns about “lack of records for the calibration and diagnostic tests, the calibration solution being changed by someone else other than whom the technician said changed it, and the technician’s lack of adherence to the training manual, which caused [the expert] concern about the technician’s

ability.” The expert was unable to say that any of his concerns caused instrument malfunction or improper operation or skewed Vardy’s results and was found to be, “at most suggestive of error. It was hypothetical and cautionary rather than specific.” [ 54 ] In Vardy the court questioned the

interpretation put forward of Powichrowski . Justice Bovard noted that “ if a material malfunction or error with the operation and or functioning of the Intoxilyzer 5000C is established, then per force a reasonable doubt is raised with respect to the remaining two areas because there would be “no reliable evidence of BAC in the case at all.” Therefore, there would be no need to launch a separate attack on them…. However, this does not mean that a reasonable doubt does not have to be raised in respect to all three areas.” [ 55 ] In R. v.

Guichon ( 2010 BCPC 335 ) the accused was not watched as carefully as then required during the 15 minute observation period while the officer was looking down, filling out various forms. The purpose of this observation period is partially to ensure no alcohol is burped, vomited or belched into the mouth, falsely elevating readings. The officer testified he didn’t hear or smell any such activity when he looked down.

The court found this raised a reasonable doubt on the proper operation of the Datamaster. [ 56 ] Despite this finding the court was not left with a doubt that the improper operation resulted in the over 80 test result. The Vardy and Powichrowski decisions ( supra ) were distinguished on the point that a finding on improper operation inevitably leads to reasonable doubt on the second and third requirements of s. 258(1)(c). Judge Bayliff wrote that “these are issues that have to be addressed on a case by case basis.

Sometimes the evidence of malfunction or improper operation will be such that it amounts to evidence tending to show “…no reliable evidence of the BAC in the case at all and necessarily a doubt would also have been raised as to the accused being over 80 at the time of the offence.” Powichrowski , At other times the evidence of malfunction or improper operation will not rise to this level or have this inevitable result.” [ 57 ] The court found that the only emissions that the officer could not have observed would have been silent and odorless and, therefore, there was not ““a doubt based on reason” but rather speculation” that the failure to appropriately observe the accused led to the over 80 results.

ANALYSIS [ 58 ] Is there evidence tending to show that the approved instrument was malfunctioning or was operated improperly? Malfunctioning? [ 59 ] Dr. Kraut testified that the results are “tainted” as the breath sequence was not completed and there was no scientific certainty that this complex instrument was functioning properly.

Ms Lehmann’s opinion was much more persuasive as she described, in some detail, how the instrument works, how the quality assurance steps played out to her satisfaction within both sequences, and why the final step is simply not critical or even necessary in determining an accurate reading. Dr. Kraut’s opinion, in comparison, was very rigid, based upon strict compliance with an out-dated protocol. I gave it very little weight. [ 60 ] Dr.

Kraut’s concerns that ambient fails may indicate that the instrument requires re-calibration are speculative, particularly in light of the successful internal calibration check which Ms Lehmann described, and do not raise a reasonable doubt. Improper Operation? [ 61 ] It appears that the breath technician followed the current protocol when relying on the breath test results for both sequences despite the ambient fail. The only error he made was to not start a new operational check sheet.

Did this error result in over 80 reading? [ 62 ] Ms Lehmann described the failure of the breath technician to start a new check sheet as a “clerical error” which would have no impact on the validity of the test results. [ 63 ] This type of error seems to illustrate the risks raised in Guichon (supra) about too narrow a reading of the Powichrowski (supra) decision. Should the court automatically find steps two and three of a s. 258(1)(c) “evidence tending to show” analysis are met when there is a finding of any operator error or malfunction?

[64] It seems clear, in Powichrowski (supra) that this is not the case. The

section simply calls, initially, for evidence tending toshow malfunction or improper operation. Justice Duncan held that if the malfunction or error was material points two and three wouldbe found as a matter of course. This somewhat conflates the requirements of the analysis required in parts one and two when themalfunction or error is serious enough. [65] There are times when the error or malfunction will not be material. In Guichon (supra) the court found the possibility ofbelching or burping to be speculative in light of the evidence that was accepted.

I similarly find here that, although the clericalprocedures were not properly followed, this breach of procedure would have had no impact on the readings themselves. Or, to put it inPowichrowski language, it was not a material error, so automatic findings on the second two points would not flow. BAC under 80? [66] Mr. Moriaux tendered evidence that his blood alcohol content would have been under 80 if his drinking pattern testimony isaccepted.

As drinking evidence is specifically precluded from consideration when determining malfunction or improper operation thisevidence alone cannot rebut the presumption in s. 258(1)(

c) and becomes somewhat moot in this type of situation. I do have concernsabout Mr. Moriaux’s credibility, however, which I will detail more thoroughly below, and that, combined with the breath test results andmy findings on factors one and two leads me to disbelieve his consumption evidence. DECISION [67] The presumptions have not been rebutted and a conviction will be entered on drive over .08.

IMPAIRED OPERATION [68] The Supreme Court of Canada affirmed, in 1994, the Ontario Court of Appeal Stellato decision ((1994), (SCC), 31 C.R. (4th) 60 (SCC)), which held any degree of impairment of ability to drive was sufficient to make out the offence ofdriving impaired. EXPERT EVIDENCE ON IMPAIRMENT [69] Mr. Moriaux admitted to having had problems with alcohol in the past but did not consider himself to “still be an alcoholic,drinking heavily.” He was still drinking, however. I make the inference from this that he would have had a degree of tolerance to theeffects of alcohol.

He was not an example of an inexperienced drinker described by Ms Lehmann who would show signs of impairmentat a 50 BAC level. [70] Both experts acknowledged that signs of impairment will show up later in people with a tolerance for alcohol.

Ms Lehmannacknowledged that regular drinkers may not show obvious signs of motor dysfunction until very high BAC levels. [71] Ms Lehmann testified that prior to signs of motor dysfunction there can be decreased visual acuity, loss of inhibitions, increasein self-confidence and risk-taking by the individual. “Most people”, she testified, “are impaired at 50 and all those, including those thatare tolerant to alcohol at 100.” [72] Dr. Kraut spoke about subtle yet noticeable signs of impairment that those with a high tolerance for alcohol could show at areading of 170.

These might include lack of coordination, hesitation in turning, some confusion, slight slurring of speech and change inmood. He also testified that an impact on judgment and perception would “start becoming more important around the legal limit.” [73] Despite both experts indicating signs of impairment of a drinker with tolerance for alcohol would be subtle Dr. Kraut dismissedmost indicia of impairment shown here and testified that in his opinion Mr. Moriaux’s ability to operate a motor vehicle was notimpaired by alcohol. [74] Mr.

Moriaux traveling on the wrong side of the road, (example of poor judgment and perception) giving a false name, (exampleof confusion) walking in a less than fair manner, (example of lack of coordination) and swearing at prisoners, (example of change inmood) were all factors considered and either dismissed by Dr. Kraut or put in a category of uncertainty. For example, on whether givinga false name was a sign of impairment he said “I’m not sure what weight to place on that” and whether driving on the wrong side of theroad was a sign of confusion he couldn’t say as he “need[ed] the details.”

[75] Dr. Kraut found the evidence of the arresting officer and the breath technician to be inconsistent as the arresting officer madeobservations of impairment and the breath technician made observations arguably of consumption only. I am not as troubled by this. Although the breath technician did not make the same observations he did not have the same opportunities to observe. He did not seeMr. Moriaux travel into the oncoming lane of traffic, he was not given a false name by Mr. Moriaux, and he did not observe him walkingfor the same distances.

Admissibility of Expert Evidence [76] Counsel raised no objections about either expert being qualified to give opinion evidence on issues surrounding impairment. [77] The four prong criteria laid out in R. v. Mohan (1994) (SCC), 89 C.C.C. (3d) 402 (S.C.C.) respectingadmissibility of expert evidence are well-known. The evidence must be reliable, necessary in assisting the trier of fact, there must be noexclusionary rule which would preclude its consideration and the expert must be properly qualified. [78] I have concerns, under the criteria in Mohan (supra), about accepting Dr. Kraut’s firm assertion that Mr.

Moriaux was notimpaired. This is the ultimate issue for the court to decide on the second count and I am mindful of the careful scrutiny that must beused in such cases. Beyond that, in a narrower sense I question its necessity. In Mohan (supra) Justice Sopinka raised the previousstandard of “helpfulness” of expert evidence to the court to “necessary” – that the opinion “must be necessary to enable the trier of fact toappreciate the matters in issue due to their technical nature…” [79] In the more recent Supreme Court decision of R. v.

J.-L.J. (2000 SCC 51 , [2000] 2 S.C.R. 600 the court held that“the purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would notknow. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is

an act of informed judgement,not

an act of faith.” [80] It is in assessing the application by Dr.

Kraut of his own criteria to the facts, particularly his uncertainty on whether certainfacts would meet his listed indicia, or what weight should be put on them, that I am left to conclude that his opinion on impairment doesnot consider all relevant evidence globally and therefore does not meet the Mohan requirement of being necessary and will not beaccepted by the court. [81] Even if I had accepted his opinion on this point I would have given it very little weight because of my listed concerns. [82] I have relied on the opinions of both experts as to signs of impairment, and have drawn my own conclusions about the evidencebased upon those opinions.

CREDIBILITY [83] Mr. Moriaux gave evidence on his own behalf outside of the voir dire. According to the SCC in the 1991 case R. v. W.D.,where a case turns entirely, or almost entirely, on the credibility of the complainant and the accused, the issue is not “which version ofthe matter is true” or whether to believe the complainant or the accused. The issue is whether the Crown’s case has been proved beyonda reasonable doubt.” (R. v. W.D. (SCC), [1991] 1 S.C.R. 742) [84] I do not completely accept Mr. Moriaux’s evidence. Of primary importance to me is his behaviour at the time of the stop. Mr.

Moriaux, a suspended driver, testified that when the officer stopped him the vehicle was still running and he misheard the officerand thought he wanted to know the usual driver of the vehicle. The usual driver, who had rented the truck for collective work purposesin Alberta, was his cousin, Michael Moriaux. Mr. Moriaux, who does not know his cousin’s birthdate, gave his own date of birth. Ifound this explanation completely incredible. The nature of a traffic stop is not complicated. The police want to see your driver’s licenseand registration. Mr.

Moriaux had something to hide and when confronted with his true identity seemed to acknowledge this when hereadily admitted that he had been “caught.” His explanation of misunderstanding the officer’s questions is unbelievable. [85] Am I left in doubt as a result of Mr. Moriaux’s testimony? One of the most compelling pieces of evidence on grounds to seek a

breathalyser was the driving from one side of the road to another and then back again. This is a marked departure from the usual mannerof driving. Mr. Moriaux offered an explanation for this. He said he was going to pull into 7-11, thought better of it and pulled back ontohis side of the road, due to the police car behind him, signaling his intention to do so. He didn’t want to be involved in a scene at 7-11.

The Crown argues that this driving took place a half block away from 7-11 and the accused’s explanation that he was going to turn isunbelievable. [86] I agree with the Crown on this point for a number of reasons. Firstly, the usual manner of turning into a store parking lot doesnot require a vehicle to go completely into the oncoming lane, secondly, this would have taken place a half block away from 7-11 and,finally, the evidence indicating that the accused signaled his intention to return to his own lane was not put to the officer and offends therule in Browne v.

Dunn ( (1893) 1893 CanLII 65 (FOREP), 6 R. 67, H.L.). As such, particularly combined with my other concernsabout Mr. Moriaux’s credibility, I give it no weight. (See consideration of Browne v. Dunn in R. v.

Mymko, 2009 MBPC 65 ,2009 MBPC 65 Giesbrecht, PCJ). [87] Although I do not believe there was evidence of gross impairment, there was certainly evidence of slight impairment of Mr.Moriaux’s ability to drive: manner of driving, slow speech, less than sure walking, confusion and emotional outburst against otherprisoners. [88] A conviction would have been entered but I will enter a judicial stay based on the principles outlined in Keinapple v. TheQueen. ( (SCC), [1975] 1 S.C.R. 729) ____________________________ Judge C.V. Harapiak