HER MAJESTY THE QUEEN - v. -, 2013 NBPC 2

R. v. Steven Vance Rasmussen 2013 NBPC2 Case 02841308 CANADA PROVINCIAL COURT OF NEW BRUNSWICK BETWEEN: HER MAJESTY THE QUEEN - and - STEVEN VANCE RASMUSSEN Judgment rendered by the Honorable Paul E. Duffie, Judge of the Provincial Court, in the matter of charges under ss. 253(1) (

b) and 253(1) (

a) of the Criminal Code of Canada . DATE OF HEARING: October 25 th , 2012 PLACE OF HEARING: Grand Falls, New Brunswick DATE OF DECISION: January 31st, 2013 APPEARANCES: Mr. Charles Couturier, on behalf of the crown Mr. Wendell Maxwell, Q.C., on behalf of the defense DUFFIE, Prov. Ct. J. Introduction [ 1 ] Mr. Rasmussen is charged under the Criminal Code of Canada with operating a motor vehicle, namely: a snowmobile, with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood (charge under s. 253 (1) (

b) of the Code ) and driving a motor vehicle while his ability to do so was impaired by alcohol or a drug (charge under s. 253 (1) (

a) of the Code ), all arising from an incident which occurred on March 11 th , 2012, while Mr. Rasmussen was operating his snowmobile on the public sidewalk along Broadway Boulevard in Grand Falls, New Brunswick. Issues [ 2 ] Mr. Rasmussen’s lawyer has raised the following trial issues: The s. 253 (1) (

b) Criminal Code charge: Expert Evidence

• Notwithstanding that the Court concludes that the crown has proven that the officer did have reasonable grounds to make a lawful breathalyzer demand, the Certificate of the Qualified Technician, attesting to the level of alcohol in Mr. Rasmussen, should not be admitted into evidence. • The defense submits that the breath test readings were taken outside the two hour requirement under the Code and the expert evidence presented to extrapolate the readings back to the time when the alleged offence would have occurred is based on flawed and/or inaccurate assumptions. s. 253 (1) (

a) Criminal Code charge: Evidence of Impairment • The defense submits that, on the evidence the court should accept, the crown has not established that Mr. Rasmussen’s ability to drive a motor vehicle was impaired beyond a reasonable doubt. The defense points out that some of the evidence, provided by the police, particularly in regards to the signs of impairment, was not recorded in their personal notes at the time of the alleged incident and the issue becomes how reliable is such evidence. As always the court must decide: • On the evidence that I accept, has the crown proven the guilt of Mr.

Rasmussen beyond a reasonable doubt on either charge? Facts [ 3 ] Constables Colby Grimmer and Charles Cormier, both peace officers for the Town of Grand Falls, testified that on the 11 th day of March 2012, they were patrolling the town about the time when the nightclubs were closing at approximately 3:00 a.m. The closing of the bars were later that evening due to the fall time change.

As they proceeded along Court Street, they arrived at the intersection of Court Street and Broadway Boulevard and observed a snowmobile that was on the sidewalk of Broadway Boulevard. [ 4 ] Constable Grimmer testified that the visibility was very good and that it was a cool and clear night with snow on the ground. He states he clearly observed a single individual on a snowmobile, now known as Mr. Rasmussen, and that the lags of the snowmobile were turning; however, the snowmobile was moving very slowly.

It came to rest against a lamppost, situated on the sidewalk along Broadway Boulevard, with the skis of the snowmobile straddling the post. He testified that it appeared that the snowmobile did not strike the lamppost but was just stuck. He states that Mr. Rasmussen backed up the snowmobile; however, when he went forward, he got stuck again against the same lamppost. Mr. Rasmussen then got off the snowmobile and tried to move it away from the lamppost. This is when Constable Grimmer activated the emergency lights of the police vehicle and the constable started towards the snowmobile.

He states that they drove up next to the snowmobile so to block his path along the sidewalk. He adds that at no time did he lose sight of the snowmobile or Mr. Rasmussen. [ 5 ] Constable Grimmer testified that he decided to intercept Mr. Rasmussen as he was in violation of operating a snowmobile within seven metres of a provincial highway namely, Broadway Boulevard, and to verify the other usual driving documentation. He states that Mr. Rasmussen got off the snowmobile and turned it off. Mr.

Rasmussen then flipped open the visor of his helmet and said: “What is wrong?” and proceeded to stumble towards him. [ 6 ] Constable Grimmer states that, while speaking with Mr. Rasmussen, he could detect a strong smell of alcohol emanating from his breath and proceeded to request the usual motor vehicle documentation. He also observed that Mr. Rasmussen’s eyes were bloodshot and his face was flushed. The constable added that he stumbled again into him and was unsteady on his feet when he produced his driving license. Even though the sidewalks were clean, Constable Grimmer says Mr.

Rasmussen was swaying back and forth and his speech was slurred. [ 7 ] Constable Grimmer formed the opinion that he had reasonable grounds to make the breathalyzer demand and advised Mr. Rasmussen of the same who, in turn, blurted out “I’m drunk as fuck”.

[ 8 ] Mr. Rasmussen was then taken to the police vehicle at 3:09 a.m. and was read the demand to provide the breath samples and given the police caution and right to counsel at 3:10 a.m. Mr. Rasmussen agreed to take the test and responded yes to the right to counsel. Constable Grimmer states while in the police vehicle he continued to detect the smell of alcohol from Mr. Rasmussen breath, his slurred speech and bloodshot eyes. He also testified that Mr. Rasmussen was unsteady on his feet outside the police vehicle. [ 9 ] As a result, Mr. Rasmussen was transported to the police station around 3:21 a.m. and Mr.

Rasmussen spoke to his lawyer until 5:05 a.m. when Constable Grimmer finally advised him that the two hour limit was in danger and told Mr. Rasmussen it was time to take the test. The first test was administered at 5:08 a.m. and the second test, 20 minutes thereafter, outside of the two hour limit requirement. [ 10 ] Constable Grimmer testified that, upon arriving at the police station, he continued to observe signs of impairment in that Mr. Rasmussen was swaying as he was going into the police station and the smell of alcohol was still present. Furthermore, once Mr.

Rasmussen had completed his lengthy talk with his lawyer, he requested to go the bathroom which he was allowed to do without Constable Grimmer losing visual contact with him at any time. [11] The constable also testified that, even after the lengthy call with his lawyer, he could still observe signs of impairment in that Mr. Rasmussen was unsteady on his feet, his speech was slurred and his face was still flushed. Constable Grimmer states that at 5:00 a.m. all the signs of impairment that he had initially observed at 3:00 a.m. were still present. [12] Overall, Constable Grimmer was of the opinion that Mr.

Rasmussen was impaired by alcohol and that he was not able to have care and control of a motor vehicle. As to the level of intoxication, Constable Grimmer said he was moderately to highly impaired. He said he would qualify it as an 8 out of 10. [13] Constable Grimmer ended his testimony by saying that he did seek the service of an expert to extrapolate the breath samples and readings provided by Mr. Rasmussen and that he did provide the details of the incident to the said expert. [14] On cross-examination it was revealed: • That Constable Grimmer agreed that he had no knowledge whether Mr.

Rasmussen would have had a medical condition or other reasons for stumbling into him such as a leg or back injury. • That he agreed that the bloodshot eyes could have been caused by allergies, having a cold or general irritation. He also said that he had no idea whether Mr. Rasmussen was wearing contact lenses. • He didn’t dispute that the flushed face could have been caused by the pressure of the helmet Mr. Rasmussen was wearing. • He admitted not knowing Mr. Rasmussen prior to this occasion and thus would not be aware of his normal speech pattern.

Consequently, he did not dispute that the slurred speech he observed could be Mr. Rasmussen’s normal speech. • He agreed that Mr. Rasmussen did laugh after he made the comment that he was drunk. • He admitted that at 3:09 a.m. the only observation and sign of impairment that he recorded in his notebook was that he detected a strong smell of alcohol. • He agreed that it appeared Mr. Rasmussen had made prior arrangements to have a friend pick up his snowmobile with a truck because, at one point, Mr.

Rasmussen pointed towards a pick-up driving up Broadway Boulevard as being the truck in question. [15] Constable Cormier, in his testimony, essentially supported and confirmed Constable Grimmer’s evidence including the signs of impairment; however, he did add the following: • When Mr. Rasmussen was asked where he was going, he pointed towards Front Street and the access to the snowmobile trail. • He states that when Mr. Rasmussen was asked for the registration of the snowmobile he had a hard time to produce the same. • He also testified that Mr.

Rasmussen was so unsteady on his feet that at one point he fell into Constable Grimmer and he had to hold him up so as to prevent him from falling to the ground.

[16] On cross-examination it was revealed: • That Constable Cormier made no notes as to his observations of the signs of impairment he described in his direct examination except for the statement “I’m drunk as a fuck” and that he noticed Mr. Rasmussen was unsteady on his feet. • That the constable made no notes of the fact that, when he first observed Mr. Rasmussen, the snowmobile’s motor was operating. • When asked what words did he slur the constable answered that he slurred his explanation of where he was going when he referred to and pointed towards the snowmobile trail.

However, the constable admitted that he did not previously know Mr. Rasmussen and would not be aware of his normal speech pattern. Furthermore, he admits to not have written in his notebook or general occurrence report about the fact that Mr. Rasmussen had slurred speech. • He agreed that Mr. Rasmussen complied with Constable Grimmer’s request to provide him with required motor vehicle documentation. • He agreed that he did not check or verify if Mr. Rasmussen would have had medical problems such as low blood sugar or being a diabetic that could have caused the balance issues Mr.

Rasmussen was experiencing. [17] The qualified breathalyzer technician who took the breath tests was Sergeant Luc Martin who testified that he arrived at the police station at 3:35 a.m. to carry out the tests. Constable Cormier presented him with Mr. Rasmussen’s photo driver’s license for identification purposes. He first saw Mr. Rasmussen through a door while he was speaking to his legal counsel. He kept in visual contact with Mr. Rasmussen until the tests were completed. He confirmed Constable Grimmer’s testimony in regards to the length of time it took for Mr.

Rasmussen to talk to his lawyer and then conducted two breathalyzer tests, namely at 5:08 a.m. and 5:28 a.m. Both samples were suitable and the results of the tests were recorded in a Certificate of Qualified Technician which has been tendered by the crown as an exhibit to prove the alcohol level of Mr. Rasmussen. [18] Sergeant Martin also testified that he estimated Mr. Rasmussen’s height to be approximately 5 feet 8 inches and his weight to be between 180 and 190 pounds. [19] Sergeant Martin states that since he had a bad nasal cold he could not detect the smell of alcohol however, he did observe Mr.

Rasmussen’s bloodshot eyes. [20] On cross-examination it was revealed: • That his initial observation of Mr. Rasmussen was from a distance through a window of a closed door of the interview room where Mr. Rasmussen was speaking to his lawyer. He also agreed that his first face to face contact with him was at 5:06, and two minutes before the first breath test results were obtained. • That his estimates as to Mr. Rasmussen’s weight and height where just his personal estimates. • He confirmed that he observed Mr. Rasmussen go to the bathroom without difficulty.

He admitted that his notes only contained the observations of Mr. Rasmussen’s red eyes and that he was unable to detect the smell of alcohol due to his cold. He also testified that he could not say as to his slurred speech as he had very little conversation with Mr. Rasmussen. EXPERT EVIDENCE [21] Mr. Jean-Claude Landry is a Forensic Alcohol Specialist and he was qualified as an expert to provide opinion evidence in regards to the absorption, distribution and intake of alcohol in the body. [22] Mr. Landry testified that, based on the information he was provided with respect to Mr.

Rasmussen, he was asked to prepare an opinion letter. [23] His findings are based on the following assumptions:

• A 43 year old male. • Height 5 feet 8 inches. • Weight 190 pounds. • No alcohol consumption from the time of the alleged offence to the taking of the test. • No alcohol consumption one half hour prior to the time of the alleged offence. • Alleged offence occurred at 3:00 a.m. • The breath samples were taken at 5:08 a.m. and 5:28 a.m. respectively and both breath readings were 120 milligrams of alcohol in 100 milliliters of blood. [24] Based on these assumptions, he states that since 2.1 hours had elapsed from the time of the alleged offence and the taking of the breath test, that such an individual would have readings in the range of 141 to 162 milligrams of alcohol in 100 milliliters of blood at 3:00 a.m. assuming an elimination rate of between 10 and 20 milligrams for every hour. [25] Mr.

Landry also made a calculation of what would have to be the consumption of alcohol one-half hour prior to the alleged offence to maintain his findings. In these circumstances he states, given the height and weight of the individual, to go from a reading of 80 milligrams of alcohol in 100 milliliters of blood at 3:00 a.m. to 120 milligrams of alcohol in 100 milliliters of blood 2.1 hours later, the individual would have had to consume 5.4 ounces of hard liquor or 3.6 beers within that half hour, namely between 2:30 a.m. and 3:00 a.m. [26] Mr.

Landry confirmed that any individual who would have a reading above 100 milligrams of alcohol in 100 milliliters of blood or more is definitely impaired and would show the normal signs or indicia of impairment and should not be driving a motor vehicle. [27] On cross-examination it was revealed: • That extrapolation of the range he determined between 141 and 162 milligrams of alcohol in 100 milliliters of blood is not dependant on the height or the weight of an individual and is solely determined on the elimination rate. • However, when calculating the amount of alcohol it would have taken one half hour prior to the alleged incident to produce a reading of 120 at 3:00 a.m., then the weight and height of an individual are taken into account. • He admitted that the breathalyzer instrument used in the case could vary plus or minus 10 in its readings.

Thus when asked to make his calculation again based on a reading of 110 rather than 120, he stated that the individual would have to had consume 4.5 ounces of hard liquor or the equivalent of 3 beers to have a reading of 120. He also pointed out that a variation of the height and weight of the individual would have an impact; however, the weight difference would have to be around 10 pounds. • So for example, if Mr.

Rasmussen would weigh 180 pounds rather than 190, then the amount of liquor required is less, namely, 4.3 ounces of hard liquor and 2.9 beers would be required to be consumed within the half hour prior to the offence to reach the reading level of 120 at 3:00 a.m. POSITION OF THE PARTIES Crown [28] The crown submits that it has proven all of the elements of both charges beyond a reasonable doubt. [29] As to the impairment charge, under s. 253 (1) (

a) of the Criminal Code of Canada , the Crown argues that both Constables Grimmer and Cormier observed clear indicia of impairment. They first witnessed a snowmobile moving very slowly on the Broadway Boulevard sidewalk that gets stuck at a lamppost. The crown submits this would certainly be considered abnormal driving of a snowmobile even in northern New Brunswick.

[30] Secondly, the crown points out that once Mr. Rasmussen is approached by the constables, he is unsteady on his feet and actually fell into Constable Grimmer to the degree that he had to be steadied by Constable Cormier so that he not would fall to the ground. [31] Furthermore, the crown is of the view that the impairment indicia observed by Constable Grimmer along with Constable Cormier is conclusive of Mr. Rasmussen’s impairment.

The crown points out that both constables detected a strong smell of alcohol emanating from his breath, he had red eyes, a flushed face and slurred speech and he was unsteady on his feet. [32] It is also the crown’s position that Mr. Rasmussen’s spontaneous admission as to being drunk supports the observations made by the constables.

The crown is prepared to admit that any individual sign of impairment may be caused by something else other than the consumption of alcohol; however, in this case, when one considers the totality of the indicia of impairment observed and the unusual driving of the snowmobile on the sidewalk, it is submitted that there is ample evidence that Mr. Rasmussen’s ability to drive a motor vehicle was impaired by alcohol. [33] As to the charge under s. 253 (1) (

b) of the Code, the crown submits firstly, that Constable Grimmer had the reasonable grounds to stop Mr. Rasmussen when he observed Mr. Rasmussen trying to maneuver a snowmobile on the sidewalk adjacent to Broadway Boulevard at 3:00 a.m. This observation by itself is highly unusual and Mr. Rasmussen was in violation of provincial regulations by being on his snowmobile in such a location. [34] Secondly, the crown submits that all the prerequisites have been established in regards to the information and assumptions that Mr. Landry, the forensic alcohol expert, relied upon to conclude that Mr.

Rasmussen’s alcohol level was well beyond the legal limit at the time he was intercepted on his snowmobile at 3:00 a.m. and that he should also be found guilty of the charge under s. 253 (1) (

b) of the Code . Defense [35] The defense submits, in regards to the impairment charge under s. 253 (1) (

a) that the police officers’ evidence, as to the signs of impairment was essentially boiler plate type statements and as such should not carry much weight or probative value. The defense relied on several cases including the case R. v. Sampson

(2009) NSJ 280 in which the Nova Scotia Supreme Court outlined the elements required to prove an impairment case. The court, in that case, acquitted the accused as the court found that along, with some signs of impairment which could be explained in part, there were also signs of non impairment and a reasonable doubt was raised. [36] I also took the opportunity to review several other cases cited by the defense in regards to the elements to be established in impairment cases. The conclusion that I arrived at is that impairment cases are unique in each situation depending on what the accused did or did not do, the evidence of the arresting officer(

s) and the direct versus circumstantial evidence in each particular case. [37] In this case, the defense argues that the boiler plate evidence of both constables is put into question for the following reasons: · As confirmed by the cases cited by defense, the simple smell of alcohol is not proof of the amount one may have consumed and that one is automatically impaired. · As to the evidence of Mr. Rasmussen’s unsteadiness, the constables never inquired if Mr. Rasmussen had any physical limitations, injuries, et cetera that would explain his lack of balance. Furthermore, it was evident that Mr.

Rasmussen was wearing heavy clothing and a helmet that could have hindered or limited his mobility. He had also just tried to move a heavy snowmobile which could have all contributed to the various signs observed by the constables. · Both constables admitted that they did not know Mr. Rasmussen’s normal speech pattern and thus their observation of his slurred speech must be put in doubt. · Constable Grimmer admitted that the helmet itself could have caused his flush face. · That the admission by Mr.

Rasmussen that he was drinking should not be given much weight as he laughed after making the statement and thus the seriousness of the statement is questionable. · There is no driving pattern established except that the snowmobile was resting against a lamppost.

[38] The defense submits that the symptom or signs of impairment observed by Constable Grimmer may have provided him withreasonable grounds to make a breathalyzer demand; however, they are not enough to support a conviction under s. 253 (1) (

a) of theCriminal Code. It is argued that the crown has not proven its case beyond a reasonable doubt. [39] Finally, under this charge, the defense points out the fact that Mr. Rasmussen was released at Tim Horton’s at 6:09 a.m. on hisown recognizance and in a public place. The court should conclude that the police must have been convinced that he was sober becausehe was released in a public place. [40] As to the breathalyzer charge under s. 253 (1) (

b) of the Code, the defense is prepared to accept that Constable Grimmer hadreasonable grounds to make the demand; however, Mr. Landry’s expert evidence in regards to the extrapolations of the readings is basedon assumptions that were no more than guess estimates provided to Mr. Landry by the investigating officers. Thus, the crown’s casemust fall because the expert’s evidence is based on flawed assumptions. [41] Mr. Landry relied on police reports as to the weight and height of Mr. Rasmussen and this was no more than a guess by SergeantLuc Martin as to this issue.

The crown never advanced any evidence as to Sergeant Martin’s experience in determining height andweight of someone and furthermore, the sergeant did not provide details as to how he arrived at his estimate. The defense also points outthat Mr. Rasmussen was never asked to provide his height and weight. The defense submits that Mr.

Landry was crystal clear that theheight and weight is vital when calculating how much alcohol would have to be consumed one half hour prior to the alleged incident todetermine whether an individual was over the legal limit at the time of the alleged offence. [42] Furthermore, the defense argues that the expert could not provide an accurate opinion as there wasn't any evidence as to when Mr.Rasmussen would have had his last drink. Normally, the arresting officer will question the detained individual as to when he had his lastdrink.

In fact, more so in this case, since the police knew they were over their two hour limit and thus should have questioned him abouthis prior drinking plus his height and weight which they did not do, or if they did, it was not established during the trial. [43] The defense says that Mr. Landry pointed out that his opinion would vary if Mr. Rasmussen had consumed 5.4 ounces of hardliquor or 3.6 beers in the half hour prior to being stopped. The defense argues that it would not be out of the ordinary to consume thatamount of alcohol in one half hour. It is submitted that it is very possible that could have happened.

Furthermore, the amount of liquorwould be reduced if the assumptions as to weight, for example, changed with a variance of ten pounds. [44] Consequently, to rely upon the Certificate of the Qualified Technician from the evidence of the extrapolation of the breath readingsby the expert would be tantamount to deciding the issue on estimates and unreliable or non-existent information. The defense submitsthat this would be contrary to law. ANALYSIS Breathalyzer Charge under s. 253 (1) (

b) of the Criminal Code. [45] The court is satisfied that Constable Grimmer had the necessary subjective belief that he had the reasonable grounds to make thebreathalyzer demand for breath samples pursuant to s. 254(3) of the Criminal Code. The question now becomes whether or not thesubjective belief held by Constable Grimmer that he had the necessary grounds to make a demand for breath samples is justifiable on anobjective basis. (see R. v. Bernshaw SCC and R. v. Sheppard 2009 SCC 35 , 2009 S.C.C. 35). [46] After considering all of the evidence in regards to the signs of impairment of Mr.

Rasmussen, the court is of the view thatConstable Grimmer’s subjective belief is justifiable on an objective basis. In fact, the defense admitted as much. Consequently, with allof the other elements of the charge established, normally the Certificate of the Qualified Technician would be entered into evidence. Then the crown could rely on its contents because the tests were conducted upon the presumption found in s. 258 (1) (

c) of the Code. The presumption essentially deems the blood alcohol level at the time of the test to be the same as at the time that the offence wasalleged to have been committed. Of course, the presumption is only applicable provided that each sample was taken not later than twohours after the time when the offence was alleged to have been committed. This referred to as the presumption of identity. [47] The Court is prepared to admit the Certificate of the Qualified Technician as C-2; however, in our case, the breath tests were takenbeyond the two hour requirement and thus the crown is unable to rely upon the presumption found in s. 258 (1) (

c) of the Criminal Code

of Canada. Nevertheless, the crown can seek to prove an individual’s blood alcohol level, at the time of driving, through expert evidenceby extrapolating the readings back to the time of the alleged offence based on alcohol absorption and elimination rates. This is why Mr.Landry, a forensic alcohol specialist, was called to give his expert evidence. [48] Therefore, the crown must prove the facts upon which the expert’s opinion is based. (see Abbey, (1982) (SCC), 2SCR 24). Mr. Landry relied on certain assumptions to make his report and to give his testimony.

The court is of the view that thecrown failed in its duty to provide all of the relevant facts required for Mr. Landry to properly do his work. There was no evidencepresented as to whether Mr. Rasmussen had or had not engaged in drinking a substantial or any quantity of liquor in the 30 minutes priorto being stopped. This is normally referred to as bolus drinking. The crown had the burden to prove this assumption was true before theexpert’s evidence could be given weight. (see R. v. Grosse, (1996) (ON CA), OJ 1840 (CA). [49] The evidence in this case reveals that Mr.

Rasmussen was found in downtown Grand Falls at the closing of the local nightclubsand there was no evidence whether Mr. Rasmussen had just left a nightclub or not. The police asked him where he was going butapparently did not ask where he was coming from. The police also did not inquire into what he had to drink or when. If they did, theconstables failed to provide this information in their respective testimonies. [50] I also agree that Mr. Rasmussen should have been asked his height and weight. If he refused to provide the same, then a properdetailed estimate of his weight could have been considered.

Such facts as to whether Mr. Rasmussen was still wearing his snowmobileclothing when observed by Sergeant Martin would be basic details that should have been part of the evidence so that the court couldconclude that the best efforts were carried out to determine his weight and height. [51] This having been said, the court is aware that it may consider circumstantial evidence tending to show the lack of bolus drinkingsuch as if Mr. Rasmussen would have been found in a remote location and not in possession of alcohol.

The court could conclude thatany bolus drinking would have been out of the question and thus that the expert’s evidence could be given some weight. However, the court finds that Mr. Rasmussen could have consumed 5.4 ounces of liquor one half hour prior to being stopped which would cause hisreading of 120 at 5:08 a.m. as per Mr. Landry’s expert evidence, thus negating his findings. He certainly had access to severalnightclubs to do so. [52] The court is left in doubt as to the expert’s evidence extrapolating the readings back to the time of the alleged offence and thusfinds Mr.

Rasmussen not guilty under s. 253 (1) (

b) of the Criminal Code. Impairment charge s. 253 (1) (

a) of the Criminal Code [53] I will first deal with the issue raised by the defense in regards to the fact that some of the notes or lack thereof taken at the sceneare deficient and, for such purpose, I have applied and reviewed the principles I outlined in regards to note taking in R. v. MichelBeaulieu

(2012) CanLII 8 (NBPC), a decision of this court. I find the principles that I outlined in the Beaulieu case are applicable inthis case. [54] Based on those principles, I am not convinced that the court should infer that, if something isn’t in the officer’s notes, it did nothappen, particularly if they are found later in the police occurrence report which was prepared sometime after the incident.

In the casebefore this court, I had to look at the totality of Constable Grimmer’s and Constable Cormier’s evidence to determine whether or not Icould rely on the evidence they gave from their independent recollection of facts that were not contained in their notes. There is nodoubt, as a best practice and for the sake of full disclosure, relevant and significant details would be best included in an officer’s notes. [55] Having said that, I did consider the evidence of Constable Grimmer and he clearly had some independent memory of the events hewas relating to the court aside from his notes.

His memory and his notes were tested in cross-examination and he did not waiver on themost important details. I did not get the impression that he was in doubt whatsoever as to his evidence in regards to having first observedMr. Rasmussen on his snowmobile, how he dealt with him thereafter and as to the indicia of impairment he observed. The same goes forConstable Cormier. As a result, I find that the evidence of Constables Grimmer and Cormier can be relied on despite the fact that somerelevant information was not included in their notes. [56] Moving on, the case of R. v. Stellato

(1993) CanLII 3375 (ONCA), which was confirmed by the Supreme Court of Canada, setsout the test for determining whether a person is an impaired driver. The Criminal Code does not prescribe any specific test fordetermining impairment. Impairment is an issue of fact which a trial judge must decide on the evidence. The standard of proof isneither more nor less than which is required for any other element of a criminal offence. Before convicting an accused of impaireddriving, a trial judge must be satisfied, beyond a reasonable doubt, that the individual’s ability to operate a motor vehicle was impaired

by alcohol or a drug. If the evidence establishes beyond a reasonable doubt any degree of impairment, the offence has been made out. The crown is not required to prove that the individual’s conduct demonstrated a marked departure from that of a normal person. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes, beyond a reasonable doubt, any degree of impairment ranging from slight to great, the offence has been made out. [57] In assessing the evidence of impairment and applying the test enumerated in Stellato , the judge should not just look at each item of evidence in isolation, but must look at the totality of the evidence to determine whether the crown has proven the impairment alleged.

It may be that certain features of the evidence have possible explanations other than impairment, but the trial judge must still determine whether, on the whole of the evidence, all of those factors present in the same case along with any unexplained observations still leave a reasonable doubt as to whether the individual’s ability to operate a motor vehicle was impaired as alleged. (“Impaired Driving in Canada – 2006 – Justice Joseph F.

Kenkel”). [58] In this case, t he following are the evidentiary factors to consider in deciding whether the crown has met its burden of proof for the offence of impaired driving in this case: · The circumstances of the where and when Mr.

Rasmussen is found trying to maneuver his snowmobile namely: stuck at a lamppost on the sidewalk on Broadway Boulevard in downtown Grand Falls at 3:00 a.m.; · The smell of alcohol on his breath; · He had bloodshot eyes and a flushed face; · When approached by police he fell into one of them and had to be secured by the other in order not to fall; · His slurred speech; · He is unsteady on his feet; · He spontaneously states that he is drunk. [59] As well, Constable Grimmer testified that he was of the view that Mr. Rasmussen was impaired. I put little weight on this opinion.

The officer is entitled to his opinion, and with his experience it carries more weight than the evidence of a civilian, but it is the objective indicia of impairment that is the most important. [60] Sometimes there are factors to consider which do not show some indicia of impairment which can raise a reasonable doubt as I found for example in the case of R. v. Alton Watson,

(2012) CanLII 13 (NBPC). However, in the case before the court, I find there are not any factors to consider which do not show some signs of impairment. [61] The defense points out that Sergeant Martin’s observation of Mr. Rasmussen was that he only had red eyes while Constables Grimmer’s and Cormier’s testimonies were really boiler plate evidence as to the signs of impairment they observed. Consequently, the defense argues that, due to this large discrepancy in regards to the signs of impairment, Mr. Rasmussen should receive the benefit of the doubt as to the actual indicia of impairment. I do not agree.

First, Sergeant Martin admitted having a cold and thus could not detect alcohol. Secondly, his observations were only at the police station and the more pertinent observations were made at the scene in this case. [62] Here are the signs of impairment retained by the court: • The unsuccessful maneuvering of the snowmobile upon a public sidewalk; • The smell of alcohol; • The unsteadiness of Mr. Rasmussen; • His slurred speech; • Mr.

Rasmussen’s admission to being drunk. [63] Weighing all of the above factors including my findings when I concluded that Constable Grimmer had reasonable grounds to make the demand, I am convinced beyond a reasonable doubt that the defendant was impaired to a high degree. The three factors which weigh most heavily towards a finding of impairment are the circumstances of where, when and how Mr. Rasmussen is found, the signs of impairment and his spontaneous admission to how drunk he was. CONCLUSION

[64] The court finds that the crown has proven beyond a reasonable doubt that Mr. Rasmussen did operate a motor vehicle, namely a snowmobile, while impaired by alcohol contrary to s. 253 (1) (

a) of the Criminal Code and thus finds Mr. Rasmussen guilty of impaired driving. DATED at Grand Falls, New Brunswick, this 31st day of January 2013. ____________________________________ Paul E. Duffie Judge of the Provincial Court of New Brunswick