2017 MBPC 29, 2017 MBPC 29

Cite #2017 MBPC 29 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Matthew Armstrong, for the Crown ) - and - ) ) George Manson ) Eric Wach, for the Accused ) ) Judgment delivered: ) July 5, 2017 CORRIN, P.J. [ 1 ] George Manson is charged with two counts: driving while impaired by alcohol and refusing to accompany an officer and provide a breath sample. The court received evidence from three witnesses, all called by the Crown. The defence did not call any evidence. TESTIMONY OF CYNTHIA WALDNER [ 2 ] On the night of the incident, Ms.

Waldner was driving north on Highway 8, a divided highway with three passengers in her mini-van. Initially, on direct examination she recalled that the incident in question occurred between 8:00 p.m. and 9:00 p.m. but on cross-examination agreed with defence counsel that the accident could have occurred close to 11:00 p.m. Ms. Waldner told court that she was driving north when she came upon a black Jeep that was also being driven northbound in her lane. She described the Jeep as travelling at a slower rate of speed than her vehicle causing her to attempt to pass in the left lane.

Court was told that the Manson Jeep had begun to slow down as Ms. Waldner’s vehicle approached it prior to her attempt to pass it. It was Ms. Waldner’s evidence that the Jeep had turned from the left-hand lane while she was passing it, that her vehicle was going exactly 100 kilometres per hour at such time. As a result, she said, the driver’s front side of her vehicle struck the rear-driver’s side of the Jeep. The collision in question was hard enough to cause her airbags to deploy. Ms.

Waldner recollected that there was an intersection in the divided highway that appeared to be the road that the Jeep was attempting to turn into. Ms. Waldner testified on cross-examination that she had been “pretty close” to avoiding the Jeep and had just clipped its rear-end. Ms. Waldner was unable to recollect whether the driver of the Jeep had employed its turn signal, just that it had turned directly from the right lane. [ 3 ] During direct examination Ms. Waldner did not testify that the accused had any slurred or abnormal speech, any difficulty in balance or walking or any other alcohol-related symptoms.

She also confirmed that she had interacted with the accused, Mr. Manson, for approximately 10 minutes subsequent to the accident and that they had shared a “civil conversation” and exchanged information as required by law. Ms. Waldner also confirmed that she had no difficulty understanding Mr. Manson and that he had appeared to understand her as well. When questioned by defence counsel respecting the accused’s manner of walking and gait, she also agreed that he appeared to stand and walk normally. [ 4 ] Ms. Waldner also agreed with defence counsel that there was nothing remarkable about Mr.

Manson’s driving as she approached him on the highway. The only qualification in that respect was her observation that she noticed that his vehicle was “slowing down” a bit as she approached it. She also acknowledged that the circumstances of the accident were such that the collision may have been avoidable and occurred because she was caught off-guard by Mr. Manson’s left turn. TESTIMONY OF CONSTABLE BEN DOIRON [ 5 ] Constable Doiron testified that on the night in question that he had been dispatched to the scene of an accident sometime after 11:00 p.m.

He told court that he and his partner, Constable Schenk, had arrived at the accident scene at 11:25 p.m.

He told court that at such time, he saw a Jeep with a damaged rear-end. [ 6 ] He told court that the arrest of the accused took place at approximately 11:38 p.m. and that he, Schenk and Manson had left the scene, on route to the detachment office at approximately 11:44 p.m., arriving at the detachment at approximately 11:59 p.m. [ 7 ] Constable Doiron, on direct examination, testified that he had initially only interacted with the accused for less than a minute, from the time he first made contact with the accused outside the ambulance to the time they walked to his cruiser car.

Constable Doiron testified that he had detected a “strong odour of liquor” as soon as he and Manson had first interacted. He also testified that Manson’s speech had been “slurred”. He further testified that although Mr. Manson was “walking okay”, that he was “a little bit off-balance, maybe not entirely sure-footed”. When asked by the Crown to describe what he meant by “off-balance”, Constable Doiron replied “typically somebody that is sure-footed and doesn’t have balance issues walks with confidence.

So not unlike myself walking into the courtroom, I know where I’m going; I can direct myself in and around this chair. It’s just an observation that he didn’t seem entirely sure of where he was going. So he seemed to be okay – he wasn’t falling over; I would have noted if he fell or if he leaned on me or grabbed my arm for support. But he just didn’t seem overly confident”. Constable Doiron also testified that later the accused was “swaying lightly” as he went down the hall in the detachment office, that at such time he was not walking in a “straight, confident line”.

Notwithstanding his testimony relating moderate balance issues and although Constable Doiron did not relate any difficulty in

understanding Mr. Manson when they interacted at the detachment office, he nevertheless placed the accused as being at such time,about the seven to eight range of intoxication, with ten being blackout drunk. [8] Constable Doiron told court that the accused, during the pre-breathalyzer observation, had informed him that he had consumedtwo beers between 5:00 p.m. and 10:00 p.m. that evening.

Doiron also related that he had been the breath tech responsible for theadministration of the breathalyzer testing and that in such regard he had provided comprehensive instructions to the accused respectingthe methodology of the testing. Constable Doiron testified that he provided a full demonstration of such methodology prior to attemptingto take any samples from the accused. He told court that the first sample attempt was at 12:33 a.m. and that the attempt registered aninsufficient sample. He went on to describe further tests and further coaching efforts on his part.

In all, he described seven individualsample attempts between 12:33 a.m. and 12:41 a.m. TESTIMONY OF AUXILIARY CONSTABLE RYAN SCHENK [9] Constable Schenk advised court that he is a volunteer Auxiliary Constable for the RCMP and as such does not receive anyactual remuneration for his service.

Court was told that as an Auxiliary Officer he is required every year to perform 160 hours of duty. [10] On the night of the incident, Constable Schenk recollected with the aid of his notes that he had been dispatched at 11:14 p.m.Constable Schenk testified that when he first arrived at the scene of the accident he had determined that the Jeep’s driver was conferringwith paramedics within their ambulance. He told court that he had entered the ambulance and observed Mr. Manson and immediatelynoted a strong smell of alcohol emanating from the accused’s person. It was also his testimony that he had observed Mr.

Manson to have“glossy, red bloodshot eyes” and “slurred speech”. He also testified that the accused had seemed confused and disoriented. ConstableSchenk testified that he had relayed his observations of Mr. Manson to Constable Doiron, who was near the ambulance. Schenk advisedcourt that at 11:32 p.m. he alone had escorted the accused the short distance from the ambulance back to the police cruiser where theyhad met Doiron.

Constable Schenk claimed to have observed the accused present with walking issues at all times, from the ambulance tothe detachment. [11] Constable Schenk testified that at 11:41 p.m., Constable Doiron had read the Notice of Arrest for impaired driving to theaccused. Schenk noted that Manson’s response was “Please don’t, please don’t, please don’t”. Schenk told court that when ConstableDoiron read Mr. Manson the police caution, he responded “I got rear-ended on my way home”.

Constable Schenk also informed courtthat on the way to the detachment office the accused had stated: “Guys, this is going to fuck me, this is going to fuck me so much. Canyou guys just give me a break? Just give me one break?” [12] Constable Schenk testified respecting Mr. Manson having a slightly unsteady gait at the detachment office. Constable Schenkalso referred to Mr. Manson admitting to consuming two beers between 5:00 p.m. and 10:00 p.m. the night of the accident. [13] Constable Schenk also testified that Mr.

Manson was noted to have slurred speech and a slightly unsteady gait as well asmumbled speech when he was taken to the breath test room. He, like Constable Doiron, testified that Mr. Manson had made seven failedbreath sample attempts and that the seventh of same was made at 12:43 a.m. SYNOPSIS OF COUNSEL’S SUBMISSIONS Defence [14] Defence counsel argued that a proper demand is an important element of the offence of ‘refusal’ and that same therefore mustbe proven beyond a reasonable doubt by the Crown.

Defence counsel argued that to be lawful, such demand must comply with thestatutory requirements outlined in section 254(3) of the Criminal Code. This

section reads: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood. (Italics are mine) [15] Citing the British Columbia Court of Appeal case R. v. Seabrook, (1991) (BC CA), B.C.J. No. 3467, defencecounsel submitted that the Crown had failed to prove that police witnesses believed that the offence was committed within the threehours preceding the making of Constable Doiron’s demand as such beliefs could not, on the evidence before the court, have been held onreasonable and probable grounds.

It was defence counsel’s contention that although the officers may have subjectively believed that theaccused had committed the offence of impaired driving in the three hours prior to the making of the demand, that such subjective beliefwas not objectively reasonable on the basis of the evidence. The court was reminded that there was no evidence before the court thatConstable Doiron had been advised as to when the accident actually occurred, that he was unable to provide any informational contentrespecting the dispatch he had received and there was no evidence that Ms. Waldner, Mr.

Manson or anyone else had provided suchinformation. [16] The defence further argued that the Crown had failed to prove the refusal offence as particularized in the Information. In thisregard, defence counsel argued that the Information before the court solely particularized that Mr. Manson failed to accompanyConstable Doiron for the purpose of providing a sample, that it made no mention of his having failed to provide such sample.

[17] Defence also submitted that there was insufficient evidence of impaired inability to drive to support a conviction with respect tothe charge of impaired driving. In this respect, defence argued that the Crown had failed to discharge its burden of proof beyond areasonable doubt. [18] Defence counsel relied on the Alberta Court of Appeal case R. v. Andrews (1996) 1996 ABCA 23 , A.J. No. 8 as wellas a number of impaired driving cases where proven bad driving in the context of certain indicia of impairment had not been viewed assufficient evidence for conviction and effectively argued that Mr.

Manson’s driving was only circumstantial evidence of possibleimpairment which was equally consistent with a lapse in judgement that related to negligence as opposed to impairment caused inabilityto drive properly. He further submitted that the accident evidence provided by Ms. Waldner was essentially unclear in reference to whatcaused the accident – that it was possible that Ms. Waldner had been driving a little too fast or had taken too long to react when Mr.Manson’s vehicle had crossed her path.

The Crown [19] The Crown asserts that notwithstanding Constable Doiron’s lack of direct evidence respecting the basis of his belief that theaccused drove within the preceding three hours, it is the only reasonable inference to be drawn from the evidence before the courtrespecting both the circumstances of the dispatch call he received and his arrival at the accident scene. [20] The Crown contended that Constable Doiron was equipped with more information than the arresting officer in Seabrook as hewas involved throughout the investigation from the time of dispatch to the moment of arrest.

As well, the Crown argued that Doiron,unlike his counterpart in Seabrook, had personally attended the accident scene, a factual difference between our case and Seabrook – afactual difference which had compelled the Supreme Court of British Columbia to distinguish a case cited as R. v. Dovgal, 2006 BCSC1562 from Seabrook. [21] The Crown also relied on a number of other cases in relation to the three hour issue: R. v. Subramaniam, 2004, ONSC; R. v.Irvine, 2002 ONCJ; R. v. Beeston, 1996 ONCJ. [22] The Crown also takes issue with the defence’s characterization of the refusal issue.

The Crown contends that the wording of theinformation was substantially captured by the trial evidence and that should entitle it to a conviction notwithstanding defence’sarguments to the contrary. The Crown also submits that any imperfection can and should be cured by a court initiated amendment madepursuant to

section 601 of the Criminal Code, a provision which permits such an amendment at any stage of the proceedings. [23] The Crown relied on R. v. Soucy, 2014 ONCJ 497; R. v. Janz, 2017 NWTTC 9 , 2017 NWTTC 09; R. v. Fuller, 2013SKQB 379 and R. v. Irwin (1998) (ON CA), O.J. No. 627 (ONCA). [24] With respect to the impairment issue, the Crown contended that the police evidence of indicia taken as a whole supported aconviction. In such respect the Crown relied on R. v. Bush, 2010 ONCA 554 and R. v.

Stellato, both decisions of the Ontario Court ofAppeal, the latter of which was of course the subject of the previously mentioned Alberta Court of Appeal Andrews case. [25] The Crown further reminded the court that section 258(3) of the Code states that a court is entitled to draw a negative inferencewhere it is satisfied that an accused has failed to comply with a valid demand for his breath.

It is the Crown’s view that such an inferenceshould be drawn in the case at bar because the accused’s failure to provide a suitable sample was in its view intentional, and as such arefusal based solely on fear of detection. [26] The Crown also encouraged the court to be mindful of the circumstances of the accident per se. In such respect Mr.

Armstrongparticularly referred to the accused’s seeming lack of awareness that other vehicles were near him on the highway when he attempted tomake his westerly turn across traffic. [27] The Crown further argued that the accused’s comments to police witnesses should also be construed as acknowledgment of hisimpairment. Court was reminded that his response to the breath demand was “I got rear-ended and now I’m fucked”, and that he’d alsotold the officers “This is going to fuck me so much.

Can you guys just give me a break?” [28] Finally, the Crown argued that the cumulative effect of the accident’s circumstances, the officer’s observations of indicia, theaccused’s attempt to avoid providing a sample and the “guilt-conscious comments” should lead the court to the “reasonable conclusion”that the accused’s ability to drive was impaired by alcohol. THE LAW Impaired Driving [29] In order to sustain a conviction under

section 253(

a) in this case, the Crown must prove that the accused’s ability to operate amotor vehicle was impaired by alcohol at the time he was operating his vehicle. The leading case on this point is R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d (SCC), [1994] 2 S.C.R. 478 (S.C.C.), wherein theSupreme Court adopted the Ontario Court of Appeal’s reasoning regarding the degree of impairment required for conviction.

Thatreasoning was succinctly summarized at paragraph 14 of the Court of Appeal’s judgment: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to

operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. (Italics are mine) [30] In Manitoba Queen’s Bench decision R. v. Czarnecki

(2000) M.J. No. 215 and 2000 MBQB 42 at paragraphs 10 and11 Hamilton, J.A. (as she was then) quoted from R. v. Andrews, a 1996 Alberta Court of Appeal decision (where leave to appeal was notgranted by the Supreme Court of Canada) with respect to the general principles that apply to judicial assessment of an impaired drivingcharge: The Alberta Court of Appeal, in R. v. Andrews, sets out a useful

summary of the general principles that apply to an impaired drivingcharge (paragraph 31): 1) The onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; 2) There must be impairment of the ability to drive of the individual; 3) That the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and 4) Proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. (Italics are mine) [31] Non-expert witnesses like police officers and civilian witnesses can testify with respect to the level of impairment of accusedpeople. In R. v.

Grant, (SCC), [1982] 2 S.C.R. 819 at paragraph 53 the Supreme Court of Canada explained that It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age,speed, identity or emotional state.

This is because it may be difficult for the witness to narrate his factual observations individually.Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witnessto narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicatedto some particular extent.

If a witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it isall the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. Refusal [32] Section 254(3) requires that an officer making a breath sample demand possess a subjective belief that a person has committedan offence under

section 253 within the preceding three hours. [33] The law therefore requires that an officer making a breath sample demand personally believes that he/she has reasonable andprobable grounds to make the demand. The related jurisprudence also requires that the demand be objectively reasonable in thecircumstances. ‘Objectively reasonable’ means assessed from the perspective of a reasonable person placed in the officer’s position. SeeR. v. Storrey (1990), (SCC), 53 C.C.C. (3d) 316 (S.C.C.) [34] The elements required for the section 254(5) refusal to provide a sample offence are:

a) a proper demand;

b) a failure or refusal by the accused to produce the required sample;

c) the intention of the accused to produce a failure or refusal; and

d) once raised by the evidence, the absence of a reasonable excuse. AMENDMENTS TO CHARGES [35]

Section 581 of the Criminal Code sets out the sufficiency requirements for all criminal charges, stating: 581(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that theaccused or defendant committed an offence therein specified. 581(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable informationwith respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count. [36] In R. v. Mandryk

(2012) O.J. No. 3349 Code, J., of the Ontario Superior Court of Justice observed at paragraph 40 as follows: 40 The form of pleading in the case at bar, under the modern ss. 254(3) and (5), is different from the pleading utilized in MacNeil.Section 506 of the Criminal Code provides that an Information “may be in Form 2”. The Appendix to the Criminal Code, which sets outthe suggested Form 2 pleading for the modern ss. 254(3) and (5) offence, is as follows: 254(3),

(5) Breath sample not provided upon demand.

A.B. on .……. at …….. did without reasonable excuse fail [or refuse] to comply with a demand made to him by C.D., a peace officer

a) to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of a qualified technician werenecessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary… or

b) to accompany the said C.D. for the purpose of enabling samples of the breath of the said A.B. to be taken pursuant to s. 254(3) ofthe Criminal Code contrary… 41 It can be seen that the modern Form 2 pleading, consistent with the result in MacNeil, suggests that the draftsperson determinewhether the case involves a failure to provide samples or a failure to accompany, and then plead only one means of committing theoffence, without pleading irrelevant surplusage. [37] Following this reasoning, Code, J. concluded that there were now two different ways that a refusal can be particularized by wayof Information pleading; by failing to provide samples sufficient for analysis or by failure to accompany an officer for such purpose. [38] In R. v.

Irwin, previously referenced, the Ontario Court of Appeal established that trial courts have significant if not sweepingpowers to amend charges to conform to the evidence, including by substituting a new charge for the charge actually laid.

To quotePaciocco, J. from Soucy at paragraph 18: “In effect, if the accused has not been prejudiced after considering the factors identified insection 601(4), then pragmatics trumps the principle of a specific allegation, and the practise that it is generally the Crown’s obligation tolay the charges it will prosecute” [39] Section 601(4) of the Criminal Code reads as follows: 601(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or(3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [40] In R. v. Moore (1988), (SCC), 1 S.C.R. 1097 Lamer, J. (as he then was) discussed the application of section601 at pages 1128 and 1129 saying: “…the judge has very wide powers to cure any defect in a charge by amending it; if the mischief tobe cured by amendment has misled or prejudiced the accused in his defence, the judge must then determine whether the misleading orprejudice may be removed by an adjournment. If so, he must amend, adjourn and thereafter proceed.

But, if the required amendmentcannot be made without injustice being done, then and only then the judge is to quash…a judge must not quash a charge… unless he hascome to that conclusion, namely that “the proposed amendment” cannot “be made without injustice being done.” ANALYSIS The Amendment/Particularization of Charge Issue [41] Defence counsel candidly conceded that his case on a ‘boiled down’ basis rests entirely on the premise that the Crown’sproposed amendment, if granted, will result in an injustice to his client, the accused.

In such respect defence submits that absent a Crownapplication for an amendment he limited his cross-examination to issues that focussed solely on the charge as it was framed as he didn’twant to compromise his client’s defence of the wrongfully laid charge. Defence also argued that the accused would of necessity havetaken the stand if the Crown or the court had moved the amendment prior to the closing of the trial. [42] In Soucy, Paciocco, J., addressed the jurisprudence respecting a trial judge’s duty to amend by reference to R. v. Brownson(2013) O.J.

No. 4661, a decision of the Ontario Court of Appeal, wherein that court observed that such amendments should be done withcaution (see paragraph 19 of Soucy), but that the prejudice bar shouldn’t be set too high, “particularly at the appeal stage.” Pacioccoconcludes as follows: “If the judge concludes that the amendment, given the nature of the evidence presented in prior proceedings andthe circumstances of the case, would not realistically mislead or prejudice the accused and that the proposed amendment would notcause an injustice, the judge is required to substitute the charge that the evidence discloses.” While I concur with Judge Paciocco’sconclusions in such respect, I do not agree with the Crown that our case should be decided in the same fashion.

Rather, I agree withdefence counsel that the two cases differ for two reasons: Firstly because the Soucy amendment related only to a charge that referred tothe same transaction i.e. a minor amendment that replaced a reference to a failed breathalyzer test with a reference to a failed ASD test, asituation where the mens rea was virtually identical and the actus reus of the offences was only very subtly different.

And secondlybecause the Soucy case was defended as if it were an ASD related ‘failure to provide’ case, and not a breathalyzer case. [43] The defence drew the court’s attention to a very similar case as ours cited as R. v. McLean

(2014) O.J. No. 4371, an appealdecision of the Ontario Superior Court of Justice. In McLean the trial court had refused to grant an amendment of a section 254(5) chargein order to accord with evidence adduced during the presentation of the Crown’s case. The Information had particularized a breathalyzerdemand offence under section 254(3) and the evidence related to an ASD demand offence under section 254(2). The defence had calledno evidence. The trial judge had cited prejudice to the accused in his reasons.

The appellate court observed that the offence as set out inthe Information was “qualitatively different than the proposed amendment, certainly the purpose of the demand is different, even thoughthey both involve refusing to provide a breath sample”. The judge, M.S. James, J., also distinguished the Irwin case, a case relied on by

the Crown herein, stating that Irwin dealt with “different ways of articulating an offence to exactly the same conduct” as opposed to a count that is qualitatively different, “even though they both involve refusing to provide a breath sample” (see paragraph 20). [ 44 ] While I agree with the Crown that it conducted its case as if it were prosecuting only a failure to provide suitable samples scenario, I also agree with defence that it conducted its case as if the allegation was as stipulated in the Information, a failure to accompany the arresting officer.

As such, I am not satisfied that the requested amendment can now be made without significant prejudice to the accused. Accordingly, the Crown’s motion for an amendment is denied and I find Mr. Manson not guilty of the refusal count. It is the court’s observation that my correction of the pleading at this late stage would completely undermine the central principle underlying our criminal justice system – that the Crown must prove its allegations as charged, beyond a reasonable doubt.

The Impaired Driving Charge [ 45 ] Stellato makes clear that any degree of impairment in driving ability, from slight to great, can constitute proof of the commission of such an offence. It also makes clear that a trial court must assess the indicia of impairment disclosed by the evidence in a cumulative not “separate individualized fashion.” Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road ( R. v.

Bush 2010, ONCA 554 at paragraph 47 approving dicta in R. v. Censoni

(2001) O.J. No. 5189 ). [ 46 ] The Crown argued that evidence of the accused’s impairment by alcohol can be found in several aspects of the evidence. First and foremost in such respect is the circumstances of the accident per se. It is my opinion that same suggests that his manner of driving was certainly reflective of possible alcohol induced motor-coordination issues as well as alcohol related mental-cognitive deficits. The description of the accident provided by Ms.

Waldner certainly suggests that the accused was probably both very inattentive in his driving as well as unable to gauge the risk associated with his left turn across or into Ms. Waldner’s vehicle path. The court observes that it thought Ms. Waldner a reliable and truthful witness, one whose testimony showed no signs of malice, vengefulness or vindictiveness. [ 47 ] Section 258(3) states that a court may draw a negative inference where it is satisfied that an accused has deliberately failed to comply with a valid breath sample demand.

Presumably this provision was enacted by parliament to reflect that an accused who refuses without reasonable excuse to comply with a legally valid demand may well be fearful that the results would show that he was legally impaired. Such a negative inference certainly seems warranted in the case at bar as the accused made comments suggestive of such acknowledgment prior to being brought to the breathalyzer testing location. The remark en route to the detachment, “Guys, this is going to fuck me, this is going to fuck me so much. Can you guys just give me a break?

Just give me one break?” The court, also in this context, heard the evidence received from Constable Doiron respecting the accused’s various inexplicable unsuccessful breath test attempts. As such I am satisfied that the accused deliberately and without excuse or even explanation, failed to comply with a legally valid breath demand.

The conjunction of the accused’s acknowledging comment/request with the evidence of his deliberate non- compliance compels me to draw a negative inference from the accused’s failure to provide suitable samples of his breath on the basis of section 258(3). [ 48 ] Accordingly, since this negative inference is certainly corroborative of the accident being caused by alcohol impairment, I therefore convict the accused of impaired driving. “Original signed by:” CORRIN, P.J.